Date: 04-08-2016

Case Style: Henry Roop v. Southern Pharmaceuticals Corporation, Glen Lingle and Douglas E. Martin

Case Number: 2014-CA-00551-SCT

Judge: James Kitchens, Jr.

Court: IN THE SUPREME COURT OF MISSISSIPPI

Plaintiff's Attorney: JIM WAIDE, SCOTT W. COLOM

Defendant's Attorney: JACK H. HAYES, JR., BEVERLY A. POHL, ADAM G. RABINOWITZ

Description: 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
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
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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 . . .
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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,
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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
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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 antikickback 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
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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
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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
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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
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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
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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.
20
¶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).

Outcome: 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

REVERSED AND REMANDED.

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