WILLIAM J. HAYNES, JR., District Judge.
Plaintiff, Michael Smith, a Tennessee citizen, filed this action under 28 U.S.C. §§ 1331 and 1343 and under 28 U.S.C. § 1332, the federal diversity statute, against Defendant, C.R. Bard, Inc., a New Jersey corporation, asserting claims of retaliatory discharge under the False Claims Act, 31 U.S.C. § 3730(h), ("FCA"), the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1-304, ("TPPA"), Tennessee common law, and the Tennessee False Claims Act, Tenn.Code Ann. § 4-18-105, ("TFCA"). The gravamen of Plaintiff's claims is that Defendant terminated him in retaliation for his internal complaint against the Defendant's improper off-label promotion and sale of Tegress in men. Plaintiff alleges that he did not remain silent about the off-label marketing and complained on three occasions—on January 31, 2008, in a discussion with Gary Lickovitch, on March 10, 2008, in an email to Mark Downey, and on March 26, 2008, in an email to Geoff Gerks.
Before the Court is Defendant's motion for summary judgment (Docket Entry No. 73) and Plaintiff's motion for partial summary judgment (Docket Entry No. 72). In his motion, Plaintiff contends that as a matter of law Plaintiff was terminated and did not resign.
In its motion, Defendant contends that Plaintiff's state law claims fail because: (1) Plaintiff cannot show that he engaged in protected activities because his complaints did not further a public good nor involve the exercise of a statutory or constitutional right; (2) Plaintiff cannot establish that he was terminated; (3) Plaintiff lacks
For the reasons set forth below, the Court concludes that Defendant's motion for summary judgment should be granted and Plaintiff's motion for partial summary judgment should be denied.
In 2000, Plaintiff began working for Bard Urological Division ("BUD"), a former division of Bard that later merged with Bard Medical Division in June 2009. Plaintiff was a Territory Manager ("TM"), assigned to the Nashville, Tennessee, territory that was part of the Southeast District. (Docket Entry No. 107, Plaintiff's response to Defendant's Statement of Undisputed Facts at ¶¶ 3, 13). BUD divided the country into eight sales districts that were headed by a District Manager ("DM"). Id. at ¶ 10. The districts, in turn, were sub-divided into territories that were assigned to individual TMs who traveled throughout the territory in an effort to meet, educate, and sell BUD products to current and potential customers. Id. at ¶ 11. Each TM reported to a District Manager ("DM"), who was responsible for supporting, coaching, and evaluating the TM. Id. at ¶ 9. Plaintiff had three DMs: Chris Roman (2004-2006); Matt Lemay (2006-2007); and Ryan McKeon (2007-2008) during his last four years of employment. Id. at ¶ 14.
BUD offered products, services and education for the surgical treatment of prostate cancer, diseases and conditions of the urinary tract (including Endourological products for the treatment and management of kidney and other stones), female incontinence, and pelvic prolapse (including the Pelvic Floor category of products, which encompass synthetic and biological therapies used to repair female anatomy). Id. at ¶ 4. TMs sold these major product categories to physicians and hospitals until 2006. Id. at ¶ 6. The products for the treatment of female incontinence included Slings, a surgical therapy for the treatment of incontinence, and Bulking, non-surgical injectable therapies designed to prevent and treat incontinence. Id. at ¶ 5.
On or about December 19, 2006, BUD announced its cessation of Tegress sales effective January 31, 2007. Id. at ¶ 86. BUD's decision to stop selling Tegress was because Tegress sales did not achieve company expectations and a new technique made surgical treatment options more effective at treating incontinence, making synthetic injectable therapies less attractive. Id. at ¶ 87. BUD instructed its sales force that after January 31, 2007, to return all Tegress samples and return or destroy all Tegress marketing materials in their possession. Id. at ¶ 88. Plaintiff does not have any proof of BUD's Tegress sales after January 31, 2007. Id. at ¶ 90.
During Plaintiff's final four years of employment from 2004-2007, among non-rookie TMs, Plaintiff ranked 40/43; 27/41; 22/36; and 35/40, respectively. Id. at ¶¶ 15, 18, 22, 26, 31. With "overall" rankings that included rookies and territories without an assigned TM, Plaintiff ranked 53/60, 30/60, 23/53, and 38/53 during this same time period. Id. at ¶¶ 16, 18, 22, 26, 31. In 2004 Plaintiff missed his quota in four of five product categories and finished under the overall total quota, earning a "Needs Improvement" rating of his overall performance. Id. at ¶¶ 19-20. In 2005, Plaintiff failed to make his quota in three out of five product categories as well as in the miscellaneous "All Other Products," earning a "Needs Improvement" rating (by then, the lowest possible rating) in all of those categories. Id. at ¶ 23. Plaintiff's DM noted that it was "the second year in a row in which [Plaintiff's] performance ha[d] been below the expectations of what [he] ha[d] witnessed in earlier years." Id. at ¶ 24.
In 2006, Plaintiff missed quota in two out of three product categories with the DM labeling Plaintiff's 2006 performance "a very average year." Id. at ¶¶ 27-28. In 2007, Plaintiff failed to achieve quota in all three product categories, earning a "Needs Improvement" in these categories, and lost over $300,000 in business. Id. at ¶ 32. Plaintiff rated himself as "Needs Improvement" on his overall rating, admitting that he "need[ed] to step up [his] game." Id. at ¶ 36.
From January 21 to 23, 2008, Ryan McKeon, Plaintiff's District Manager, met with Plaintiff to discuss Plaintiff's performance and his need to improve. Id. at ¶ 37. In a January 25, 2008, letter to Plaintiff, McKeon summarized their discussions and stated: "Over the last three years you have had your struggles and you and I have discussed in depth some of the reasons.... You have to turn it on and work your territory with that same intensity and hunger that you had when you started at BUD." Id. at ¶ 39. McKeon also informed Plaintiff: "We will be closely assessing your progress together on a weekly basis to assure that you are on target. If you are not trending to achieve your 2008 quota by the end of March 2008 we will then have to put an action plan in place to assist you in achieving your goals." Id. at ¶ 40.
From January 28 to January 31, 2008, Plaintiff attended Bud's 2008 National Sales Meeting ("NSM"). Id. at ¶ 91. As in every previous year, a Bard attorney presented a training on compliance with
According to Plaintiff, one presentation at the NSM warned that the promotion and marketing of medical devices for off-label use was prohibited and advised, for the first time, that the Department of Justice was targeting sales representatives for prosecution. (Docket Entry No. 100, Smith Deposition at pp. 180-85; Docket Entry No. 101, Smith Deposition at pp. 52-53; Docket Entry No. 92, Selznick Deposition, Exhibit 13 at D001390). Plaintiff became concerned over the possibility that he could be criminally liable for marketing Tegress for off-label use. (Docket Entry No. 101, Smith Deposition at pp. 52-54). Plaintiff testified that he previously thought the company might be liable, but did not believe that the sales representatives could be. Id. at p. 54.
Following this presentation, Plaintiff voiced his concerns to Gary Lickovitch, Regional Manager, stating, "I have some grave concerns about what I just heard. I feel that we have committed these things and that we have engaged in off-label use of Tegress for injection in males." (Docket Entry No. 99, Smith Deposition at pp. 116-17). Lickovitch did not manage Plaintiff's district nor directly supervise Plaintiff. (Docket Entry No. 83, Lickovitch Declaration at ¶¶ 3-4). According to Plaintiff, Lickovitch told Plaintiff to "Shut the fuck up," and that if Plaintiff did not, Lickovitch would "run [Plaintiff] out of the company" and that Plaintiff "need[ed] to be more worried about what [Lickovitch] [could] do to [Plaintiff's] career." (Docket Entry No. 99, at pp. 117-18).
Lickovitch disputes Plaintiff's allegation and states that Plaintiff did not mention any concerns regarding off-label marketing of Tegress before, during or after the 2008 NSM. (Docket Entry No. 83, at ¶ 6). Lickovitch also states that during the 2008 NSM, he did not argue, swear or threaten Plaintiff. Id.
On March 7, 2008, McKeon informed Plaintiff that he had drafted a Performance Improvement Plan ("PIP") and would deliver the plan to him no later than March 11, 2008. McKeon told Plaintiff that he wanted Plaintiff to fill out weekly call reports that were designed to focus Plaintiff on his sales in a more detailed fashion. McKeon also told Plaintiff that they would begin holding weekly telephone calls to review his performance and assess Plaintiff's completion of the weekly call reports. (Docket Entry No. 77, McKeon Declaration at ¶ 11). By March 10, 2008, Plaintiff was failing to attain quota in two out of the three product categories and was on pace to attain only 76.5% of the overall quota. In the Pelvic Floor category that accounted for two-thirds of the overall 2008 quota, Plaintiff was at 56.9% of quota. (Docket Entry No. 107 at ¶ 97).
Plaintiff disputes that McKeon told him that a PIP would be implemented and denies knowledge of the plan to implement a PIP prior to his March 10, 2008, email to Mark Downey. (Docket Entry No. 108, Smith Declaration at ¶ 13). Plaintiff's March 10, 2008 email to BUD President Mark Downey asserted that BUD "may have been in violation of FDA rules for the marketing of Tegress for male incontinence due to radical prostatectomy." (Docket Entry No. 107 at ¶ 101). According to Plaintiff, "Gary Lickovitch was a vocal proponent in the sales management
Plaintiff further asserted that following his discussion with Lickovitch on January 31, 2008, Lickovitch and Bard executive staff: (1) questioned his expense reports; (2) stated that Plaintiff was "a cancer and will soon be out of Bard"; (3) asked his manager about his cell phone greeting that had not changed in eight years; (4) questioned the authenticity of doctor signatures on forms that Plaintiff had submitted; (5) threatened to monitor his computer; (6) directed his manager to have him submit weekly call reports, "presumably, as a first step towards a PIP"; and (7) received a performance review on February 11, 2008, that stated "needs improvement." Id.
The next morning, March 11, 2008, Geoffrey Gerks, the Vice President of Human Resources, suspended implementation of the PIP. (Docket Entry No. 107 at ¶ 112). Gerks informed Plaintiff that "steps [were] being taken to fully investigate all of the allegations you recently raised" and as a result, BUD had "temporarily placed on hold the implementation of a Performance Improvement Plan that was planned and scheduled to be delivered prior to receipt of your email to Mark Downey dated March 10, 2008." Id. Gerks contacted corporate counsel, and Bard engaged attorneys at Morgan Lewis & Bockius to investigate Plaintiff's allegations of off-label promotion of Tegress.
The day after his email to Downey, Plaintiff informed McKeon that he was taking a week of vacation from March 11 through March 14. Id. at ¶ 104. The following week (March 17-21, 2008), Plaintiff took a second week of vacation. Id. at ¶ 105. Plaintiff is unsure if he were on vacation the week of March 24-28, 2008, but he did not send a weekly call report to his supervisor. Id. at ¶ 106.
On March 26, 2008, Plaintiff emailed Gerks, stating his concerns about how Bard treated him since his discussion with Lickovitch on January 31, 2008. (Docket Entry No. 90, Gerks Deposition, Exhibit 16). Plaintiff stated:
Id.
Plaintiff cancelled a doctor visit that he had scheduled for March 28 because of an
On April 4, 2008, McKeon placed a call to Plaintiff on his company-issued phone to discuss Plaintiff's performance and a particular form that McKeon had requested him complete. Id. at ¶ 139. After this conversation, on April 7, 2008, McKeon sent an email to Gerks summarizing their conversation. Id. at ¶ 141. According to McKeon, Plaintiff stated that he was "finished working for Bard," he would not work his territory, he was cutting off communication with McKeon, and he would not go into his accounts anymore. Id. at ¶ 140.
According to McKeon, he asked Plaintiff, "[W]hy don't you just resign and do things the right way," and Plaintiff responded, "[N]o the first step that is going to take place is that [my] attorneys will be sending a letter either today 4/4/2008 or on Monday 4/7/2008 stating that they are cutting off communications between [Plaintiff] and his direct reports." (Docket Entry No. 77, McKeon Declaration, Exhibit L). McKeon informed Plaintiff that "this could lead to [him] being terminated," and Plaintiff responded that he wanted them to terminate him so that he could "act on the Tennessee whistle blower law." Id. Plaintiff denies that he said he was finished working with Bard, that he was done with his territory and accounts, that he was cutting off communication with Bard and that he said to terminate him so that he could "act on the Tennessee whistle blower law." (Docket Entry No. 100, Smith Deposition at p. 318).
On April 8, 2008, Gerks emailed Plaintiff, stating that based on Plaintiff's conversation with McKeon, Bard was accepting Plaintiff's resignation. (Docket Entry No. 90, Gerks Deposition, Exhibit 12). On the same date, Plaintiff responded by email that he did not submit his resignation to McKeon and that he had spoken to several customers/prospects as well as Bard's Regional Vice President on various business related matters. Id., Exhibit 11. Plaintiff remarked, "Does this strike you as odd behavior for an employee that supposedly resigned on April 4th?" Id. Plaintiff stated that he did express his dissatisfaction to McKeon concerning Bard's handling of his complaint to Downey and that he relayed to McKeon that he had too much invested in his eight years at Bard to resign without giving Bard the opportunity to address his concerns. Plaintiff concluded, stating that he would "continue [his] efforts to grow C.R. Bard's business in [his] territory." Id.
On April 9, 2008, Gerks responded via email stating that Bard did not accept Plaintiff's attempt to rescind his resignation. Id., Exhibit 13. Plaintiff responded on April 11, 2008, reiterating that he did not resign and stating that he considered himself terminated. (Docket Entry No. 75, Exhibit G).
Plaintiff testified that he first complained about the promotion of off-label use of Tegress in men to LeMay in 2006, stating that he could not "believe that [they were] pushing [Tegress] to the male market when it didn't work in the female market and [they] [didn't] have the FDA approval for it." (Docket Entry No. 99, Smith Deposition at pp. 104-05). Plaintiff testified that he made similar complaints to DM Tad Nations in 2006, Downey in
Plaintiff testified that prior to 2008, TM Jason Selznick, TM Hillary Kunda, and DM Tad Nations also complained about off label marketing of Tegress, yet admits that they were not run out of the company because of those complaints. (Docket Entry No. 107 at ¶ 148). Jason Selznick testified that he did not complain to anyone that others were promoting Tegress for off-label purposes. Id. at ¶ 149. Selznick further testified that his employment with BUD ended June 22, 2009, when he along with 50% of the BUD sales force was laid off as part of a merger of divisions. Id. at ¶ 150. Tad Nations testified that he too was displaced by the merger of divisions in June 2009. Id. at ¶ 151. Hillary Kunda testified that she was not fired but, rather, had her position eliminated. Id. at ¶ 152.
"The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Advisory Committee Notes on Rule 56, Federal Civil Judicial Procedure and Rules (West Ed. 1989). Moreover, "district courts are widely acknowledged to possess the power to enter summary judgment sua sponte, so long as the opposing party was on notice that [he] had to come forward with all of [his] evidence." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); accord, Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the United States Supreme Court explained the nature of a motion for summary judgment:
477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in the original and added in part). Earlier the Supreme Court defined a material fact for Rule 56 purposes as "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted).
A motion for summary judgment is to be considered after adequate time for discovery. Celotex, 477 U.S. at 326, 106 S.Ct. 2548 (1986). Where there has been a reasonable opportunity for discovery, the party opposing the motion must make an affirmative showing of the need for additional discovery after the filing of a motion for summary judgment. Emmons v. McLaughlin, 874 F.2d 351, 355-57 (6th Cir.1989). But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (emphasis deleted).
As the Court of Appeals explained, "[t]he moving party bears the burden of satisfying Rule 56(c) standards." Martin v. Kelley, 803 F.2d 236, 239, n. 4 (6th Cir.1986). The moving party's burden is to show "clearly and convincingly" the absence of any genuine issues of material fact. Sims v. Memphis Processors, Inc., 926 F.2d 524, 526 (6th Cir.1991) (quoting Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986)). "So long as the movant has met its initial burden of `demonstrat[ing] the absence of a genuine issue of material fact,' the nonmoving party then `must set forth specific facts showing that there is a genuine issue for trial.'" Emmons, 874 F.2d at 353 (quoting Celotex and Rule 56(e)).
Once the moving party meets its initial burden, the United States Court of Appeals for the Sixth Circuit warned that "the respondent must adduce more than a scintilla of evidence to overcome the motion [and] ... must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989) (quoting Liberty Lobby). Moreover, the Court of Appeals explained that:
Street, 886 F.2d at 1480 (citations omitted). See also Hutt v. Gibson Fiber Glass Products, 914 F.2d 790, 792 (6th Cir.1990) ("A court deciding a motion for summary judgment must determine `whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'") (quoting Liberty Lobby).
If both parties make their respective showings, the Court then determines if the material factual dispute is genuine, applying the governing law.
Liberty Lobby, 477 U.S. at 248, 252, 106 S.Ct. 2505 (citation omitted and emphasis added).
It is likewise true that:
Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962) (citation omitted). As the Court of Appeals stated, "[a]ll facts and inferences to be drawn therefrom must be read in a light most favorable to the party opposing the motion." Duchon v. Cajon Co., 791 F.2d 43, 46 (6th Cir.1986).
The Sixth Circuit further explained the District Court's role in evaluating the proof on a summary judgment motion:
InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989). Here, the parties have given some references to the proof upon which they rely. Local Rules 56.01(b)-(d) require a showing of undisputed and disputed facts.
In Street, the Court of Appeals discussed the trilogy of leading Supreme Court decisions, and other authorities on summary judgment and synthesized ten rules in the "new era" on summary judgment motions:
Street, 886 F.2d at 1479-80 (citations omitted).
The Court has distilled from these collective holdings four issues that are to be addressed upon a motion for summary judgment: (1) has the moving party "clearly and convincingly" established the absence of material facts?; (2) if so, does the plaintiff present sufficient facts to establish all the elements of the asserted claim or defense?; (3) if factual support is presented by the nonmoving party, are those facts sufficiently plausible to support a jury verdict or judgment under the applicable law?; and (4) are there any genuine factual issues with respect to those material facts under the governing law?
Tennessee has long recognized the employment at-will doctrine, under which the "concomitant right of either the employer or the employee to terminate the employment relationship at any time, for good cause, bad cause, or no cause at all, without being guilty of a legal wrong." Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997). Tennessee courts also recognize exceptions to this doctrine: "In Tennessee an employee-at-will generally may not be discharged for attempting to exercise a statutory or constitutional right, or for any other reason which violates a clear public policy which is evidenced by an unambiguous constitutional, statutory, or regulatory provision." Id. at 717. These exceptions attempt to strike a balance between
To establish a retaliatory discharge claim under the common law, a plaintiff must prove the following:
Crews v. Buckman Laboratories Int'l, Inc., 78 S.W.3d 852, 862 (Tenn.2002) (citations omitted).
As to its role in discerning public policy, the Tennessee Supreme Court has stated:
Stein, 945 S.W.2d at 717 (quoting Nashville Ry. & Light Co. v. Lawson, 144 Tenn. 78, 91, 229 S.W. 741, 744 (1921) (with other citation omitted)). Tennessee courts do not "engage in hypothetical guessing to fashion public policy," nor do they "attempt to discern public policy from the common law." Id.
In addition to a common-law action for retaliatory discharge, the TPPA, commonly referred to as the "Whistleblower Act," Tenn.Code Ann. § 50-1-304(a), provides that an employee shall not be discharged solely for refusing to participate in or to remain silent about illegal activities. Tenn.Code Ann. § 50-1-304(b). "Illegal activities" include activities that are in violation of state or federal criminal or civil codes or any regulation intended to protect the public health, safety or welfare. Tenn.Code Ann. § 50-1-304(a)(3). To establish a retaliatory discharge claim under the TPPA, a plaintiff must prove that (1) he was an employee; (2) he refused to participate in, or to remain silent about, illegal activities; (3) he was terminated by his employer; and (4) there is an exclusive causal relationship between the plaintiff's refusal to participate in or remain silent about illegal activities and his termination. Sykes v. Chattanooga Housing Auth., No. E2008-00525-COA-R3-CV, 2009 WL
Thus, the first three elements of statutory retaliatory discharge are identical to the elements of the common-law claim. Bright v. MMS Knoxville, Inc., No. M2005-2668-COA-R3-CV, 2007 WL 2262018, at *3 (Tenn.Ct.App. Aug. 7, 2007); Moray v. Novartis Pharmaceuticals Corp., No. 3:07-cv-1223, 2009 WL 82471, at *7 (M.D.Tenn. Jan. 9, 2009). However, "[t]he fourth element differs from the common law in that, to benefit from statutory protection, an employee must demonstrate that his or her refusal was the sole reason for his or her discharge." Bright, 2007 WL 2262018, at *3 (citing Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 535-37 (Tenn.2002)) (emphasis added).
Courts often analyze statutory and common law whistleblower claims together. See, e.g., Bright, 2007 WL 2262018, at *3-5; Williams v. Columbia Hous. Auth., No. M2007-1379-COA-R3-CV, 2008 WL 4426880, at *3-5 (Tenn.Ct. App. Sept. 30, 2008); Moray, 2009 WL 82471, at *7-12; Treadaway v. Big Red Powersports, LLC., 611 F.Supp.2d 768, 783 (E.D.Tenn.2009). In analyzing a whistleblower case, a court is
Bright, 2007 WL 2262018, at *4.
If a plaintiff establishes a prima facie case under the TPPA or common law, based on direct or circumstantial evidence, showing a causal relationship between plaintiff's refusal to participate in or to remain silent about an illegal activity and the employer's decision to terminate the employee, the burden shifts to the defendant to come forward with a legitimate, nondiscriminatory reason for its actions. Provonsha v. Studs. Taking a Right Stand, Inc., No. E2007-469-COA-R3-CV, 2007 WL 4232918, at *4 (Tenn.Ct.App. Dec. 3, 2007). If the defendant articulates such a reason, the burden of proof shifts back to the plaintiff to show that defendant's proffered reasons are pretextual or not worthy of belief. Id. "To meet this burden, plaintiff must show by admissible evidence either `(1) that the proffered reason has no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate the discharge.'" Id. (citation omitted).
Defendant argues that Plaintiff cannot prove three of the four elements in his state law claims, contending that Plaintiff cannot show that he engaged in protected activities because his "complaints" did not further a "public good;" that he was terminated; or Plaintiff's proof lacks the requisite level of causation under either the TPPA or common law. Assuming that Plaintiff carries his burden, Defendant argues
Defendant also contends that Plaintiff's actions did not constitute efforts to bring to light an illegal or unsafe practice that furthered an important public policy interest because Plaintiff acted merely to advance his private interest. See Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 538 n. 4. (Tenn.2002). ("[U]nder both the statute and the common law, the plaintiff must assert that his or her whistleblowing activity `serves a public purpose [that] should be protected. So long as employees' actions are not merely private or proprietary, but instead seek to further the public good, the decision to expose illegal or unsafe practices should be encouraged.'") (citation omitted); Collins v. AmSouth Bank, 241 S.W.3d 879, 885 (Tenn.Ct. App.2007). Defendant cites Bright v. MMS Knoxville, Inc. for support.
In Bright the plaintiff, a technician who delivered oxygen machines to patients, reported a patient's smoking to the manager of her retirement community. 2007 WL 2262018, at *1. The plaintiff was concerned that he or his employer could be held liable if the patient were injured. Id. The patient complained to the plaintiff's employer, the employer terminated the plaintiff's employment, and the plaintiff sued, asserting both a TPPA and common law claim for retaliatory discharge. Id. at *2.
The court noted the existence of state and local regulations to curtail the dangers of smoking in retirement communities and nursing homes and that the plaintiff's actions "stemmed from a good faith attempt to prevent a safety hazard." Id. at *4, 5. However, the court stated that "it [was] hard to reconcile [the plaintiff's] claim for whistleblower status" because the plaintiff "testified that his `legal concern' was that he or [his employer] could incur liability for any damage caused by [the patient's] smoking." Id. at *5. The court concluded, "The circumstances of this case present a well-intentioned employee who sought to avoid legal responsibility for a potentially hazardous situation. This simply does not fall within the scope of the protection provided by the statutory or common-law actions for retaliatory discharge." Id.
In response Plaintiff cites VanCleave v. Reelfoot Bank, No. W2008-01559-COA-R3-CV, 2009 WL 3518211 (Tenn.Ct.App. Oct. 30, 2009). However, Plaintiff's reliance on VanCleave is misplaced. VanCleave attempted to clarify the Tennessee Supreme Court's "statement in Guy, paraphrased in Collins, [that] may be interpreted as requiring a plaintiff in a retaliatory discharge case to show subjective intent to further the public good." Id. at *7. The court explained that retaliatory discharge claims include claims involving a refusal to remain silent, i.e. "whistleblower" claims, and those involving a refusal to participate in illegal activities. Id. The court concluded, "To the extent that the statement in Guy, relied on in Collins, can be read as requiring that the plaintiff's reporting of the illegal activity be motivated by a desire to further the public good, such a statement of the law would be limited to a whistleblowing claim." Id. at *8. Because the plaintiff in VanCleave had asserted retaliatory discharge for refusal to participate in illegal activities, the court found that the plaintiff was not required to demonstrate a subjective intent. Id. Thus, because Plaintiff is asserting a "whistleblowing" claim, i.e. refusal to remain silent, the Court concludes VanCleave is inapplicable
Here the undisputed facts reveal that Plaintiff acted merely for private reasons and was not seeking "to further the public good." Plaintiff testified that the reason he came forward was because he learned of the possibility of sales representatives being held criminally liable. Also, in his email to Downey, Plaintiff stated that he was concerned "as an employee and a shareholder" with a "meaningful amount of ... stock options" and that he "thought it good business" to discuss his concerns directly with Lickovitch. Further, Defendant had stopped selling Tegress in January 2007, a year before his discussion with Lickovitch. The timing of Plaintiff's actions and his reasons given show that he was acting based on private concerns. See Treadaway, 611 F.Supp.2d at 783 (emphasis in original) (in granting summary judgment on TPPA and common law whistleblowing claim the court stated, "In her deposition, Plaintiff conceded her only purpose in discussing the CO issue with Defendant was to inform them about her personal concern for her fetus-not about her concern for the safety of others who worked in or patronized Defendant's facility.").
In an attempt to demonstrate that Plaintiff was not only protecting his private interests but was also seeking the public good, Plaintiff cites his Declaration where he states: "In making these complaints, I was seeking to further the public's protection from the dangers inherent from using products in a manner that had not been FDA approved and to stop fraudulent claims from being submitted to the government." (Docket Entry No. 108, Smith Declaration at ¶ 8). Plaintiff's declaration directly contradicts his deposition testimony that follows:
(Docket Entry No. 101, Smith Deposition at pp. 53-54).
"A party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony." Hall v. Wal-Mart Stores East, LP, 637 F.Supp.2d 588, 591 n. 2 (M.D.Tenn. 2009) (quoting Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986)). Accordingly, the Court does not consider the cited portion of Plaintiff's declaration.
Defendant stopped the implementation of the PIP in response to Plaintiff's email to Downey. Defendant also retained an outside law firm to conduct an investigation of Plaintiff's complaints. Further, it should be noted that Plaintiff testified that he had complained about off-label promotion of Tegress in men prior to 2008 and the Defendant did not take any adverse action against him. Moreover, Plaintiff testified that Selznick, Nations, and Kunda also made similar complaints prior 2008 and none were retaliated against. Selznick and Nations left Bard in a June 2009 reduction in force that was part of a larger corporate transaction and Kunda was laid-off when her position was eliminated. These facts undermine Plaintiff's burden of proving causation as these employees, who allegedly engaged in the same protected activity, did not suffer any adverse employment action.
In his brief, Plaintiff relies strictly on temporal proximity to prove causation, citing Allen v. McPhee, 240 S.W.3d 803, 823 (Tenn.2007). However, Plaintiff's reliance on Allen is misplaced. Allen pertained to a retaliation claim brought pursuant to the Tennessee Human Rights Act ("THRA"), not the TPPA or common law, where the plaintiff was required to show only "a causal connection between the protected activity and the materially adverse action" as opposed to the sole/substantial factor standard under the TPPA and common law.
Further, in Mason v. Seaton, 942 S.W.2d 470 (Tenn.1997) the Tennessee Supreme Court, addressing a TPPA claim, stated that "proximity in time between the protected act and the discharge is not sufficient to establish a causal relationship." Id. at 473 (citing Conatser v. Clarksville Coca-Cola, 920 S.W.2d 646, 648 (Tenn. 1995) (in rejecting common law retaliatory discharge claim based on plaintiff's discharge three days after filing a workers' compensation claim, the Court found plaintiff could not establish causation by relying solely on temporal proximity)). Moreover, in a case involving a common law retaliatory discharge claim, the Sixth Circuit stated, "The dissent's reliance on the Tennessee Supreme Court's later decision in Allen v. McPhee, 240 S.W.3d 803, 823 (Tenn.2007), is misplaced here because the Tennessee Supreme Court had already decided the issue in Conatser and therefore Allen is not instructive in this respect." Ellis v. Buzzi Unicem USA, No. 07-5660, 293 Fed.Appx. 365, 375 (6th Cir. 2008); see also Thompson v. Ameritech Advertising Servs., 40 Fed.Appx. 90, 93 (6th Cir.2002) (finding that "any inference of causation that might be drawn from temporal proximity" was undermined by the fact that "none of the other three employees who [engaged in the protected activity] have suffered any adverse action.").
Accordingly, for these reasons, the Court concludes that Plaintiff has
Because the common-law and the statutory retaliation claims require proof that the employee was actually discharged, Plaintiff's other allegedly retaliatory actions, including scrutinizing of his expense reports, questioning the authenticity of doctors' signatures on sales orders, questioning his voicemail greeting, directing him to submit weekly call reports, and publicly ridiculing him and calling him a "cancer" are not actionable. Turner v. Liberty Nat. Life Ins. Co., 488 F.Supp.2d 672, 677-78 (M.D.Tenn.2007); Moray, 2009 WL 82471, at *7.
Plaintiff asserts a claim under 31 U.S.C. § 3730(h)(1994) that provides, in pertinent part:
Id.
To state a claim, Plaintiff must establish that (1) he engaged in protected activity; (2) Bard knew about his protected activity; (3) Bard took adverse employment actions against him; and (4) there was a causal connection between the adverse employment actions and the protected activity. Scott v. Metro. Health Corp., 234 Fed.Appx. 341, 346 (6th Cir.2007).
Defendant contends that Plaintiff cannot make a prima facie showing that he had a good-faith belief that Defendant was engaged in fraud or that there was any causal connection between protected activity and any adverse employment action and that Defendant had a legitimate, nonretaliatory reason for deeming Plaintiff to have resigned and Smith is unable to show that this reason is pretextual.
"[A]n employee engages in protected activity where (1) the employee in good faith believes, and (2) a reasonable employee in the same or similar circumstances might believe, that the employer is possibly committing fraud against the government." Moore v. California Institute of Technology Jet Propulsion Lab., 275 F.3d 838, 845 (9th Cir.2002); Fanslow v. Chicago Mfg. Ctr., 384 F.3d 469, 480 (7th Cir.2004); Thompson v. Quorum Health Resources, LLC, No. 1:06-CV-168, 2010 WL 234801, at *3 (W.D.Ky. Jan. 13, 2010). Thus, there is a subjective and an objective component for assessing whether an activity is protected conduct under the FCA.
"[T]he `protected activity' must relate to `exposing fraud' or `involvement with a false claims disclosure.' An employee, however, need not expressly know that the FCA allows qui tam actions to be filed against their employer, or have already filed such an action to be protected from retaliation under § 3730(h)." McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508, 516 (6th Cir.2000) (citation omitted). Therefore, a court must inquire
Whether the protected activity was taken "in furtherance of" an FCA enforcement action "requires consideration of (1) the type of activity [the plaintiff] engaged in, and (2) [the plaintiff's] purpose in engaging in the activity." Perius v. Abbott Labs., No. 07 C 1251, 2009 WL 1851151, at *6 (N.D.Ill. June 26, 2009). "Because the purpose of the statute was to `assure those who may be considering exposing fraud that they are legally protected from retaliatory acts,' the statute requires that a plaintiff's purpose involve `at least some ingredient of uncovering fraudulent activity.'" Id.
In McKenzie, the plaintiff alleged that the defendant telephone company falsified reports to avoid having to make refunds to the United States and other customers. 219 F.3d 508. In its analysis, the Sixth Circuit stated:
Id. at 516-17 (citations and footnote omitted).
Here, Plaintiff's actions were not sufficiently connected to exposing fraud or false claims against the federal government. Bard had stopped selling Tegress in January 2007. From 2005 to 2007 Plaintiff did not complain that Bard was defrauding the government. As stated previously, Plaintiff was concerned about possible personal liability and was not seeking to expose any alleged fraud on the government. Although Plaintiff states that he was pursuing "a false claims act action" in his March 26, 2008, email to Gerks, this statement is in reference to Plaintiff's complaint of alleged retaliatory conduct stemming from his concerns he allegedly expressed to Lickovitch that the promotion of the off-label use of Tegress was "a false claim (including a false certification to the FDA) by the company." Thus, the purpose of Plaintiff engaging in this activity was based on his concern over possible personal liability, not exposing fraud. Moreover, "a violation of a law or a regulation standing alone is not proof of a false claim." Hopper, 91 F.3d at 1270; Luckey v. Baxter Healthcare Corp., 2 F.Supp.2d 1034, 1045 (N.D.Ill.1998) ("the FCA is not a vehicle for regulatory compliance... [and] the FCA is not designed to punish every type of fraud committed upon the government"); Moor-Jankowski v. Board of Trustees of New York Univ., No. 96 Civ. 5997, 1998 WL 474084, at *12 (S.D.N.Y. Aug. 10, 1998).
Further, the Court concludes that Plaintiff's proof fails to show he had an objective basis to believe Defendant conducted a fraud on the government. Physicians may prescribe drugs for off-label uses at their discretion. See 21 U.S.C. § 396. Allowing physicians to prescribe drugs for such "off-label" usage "is an accepted and necessary corollary of the FDA's mission to regulate [pharmaceuticals] without directly interfering with the practice of medicine." Buckman Co. v. Plaintiff's Legal Comm., 531 U.S. 341, 350, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001). Although physicians may prescribe drugs for off-label use, the FDA prohibits drug manufacturers from marketing or promoting a drug for a use that the FDA has not approved. See 21 U.S.C. § 331(d).
Here Plaintiff failed to identify any doctors who prescribed Tegress off-label because of any illegal promotion by a Bard TM or that any alleged off-label use, due to a TM's off-label promotion, resulted in a fraud on the government.
Accordingly, Plaintiff's FCA fails.
Plaintiff did not cite his TFCA claim along with the rest of his claims in paragraph 1 of his Complaint. Nor did Plaintiff cite the TFCA claim as a theory of recovery in his proposed case management order (Docket Entry No. 35) that was entered by the Court. See (Docket Entry No. 37). Accordingly, the Court deems this claim abandoned. See Dickson v. Sizemore Sec. Intern., Inc., No. 3:06cv0886, 2007 WL 2903906, at *7 (M.D.Tenn. Oct. 3, 2007).
Accordingly, Defendant's motion for summary judgment (Docket Entry No. 73) should be granted and Plaintiff's motion for partial summary judgment (Docket Entry No. 72) should be denied as moot.
An appropriate Order is filed herewith.
