Scott Gammons v. Adroit Med. Sys., Inc.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0012p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

SCOTT E. GAMMONS,

│

Plaintiff-Appellant, │

> No. 23-5374

│

v. │

│

ADROIT MEDICAL SYSTEMS, INC.; GRAZYNA H. │

GAMMONS; KELLEY PATTEN; GENE GAMMONS, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville.

No. 3:21-cv-00173—Thomas A. Varlan, District Judge.

Argued: December 7, 2023

Decided and Filed: January 22, 2024

Before: WHITE, THAPAR, and BLOOMEKATZ, Circuit Judges.

_________________

COUNSEL

ARGUED: John M. Lawhorn, FRANTZ, MCCONNELL & SEYMOUR, LLP, Knoxville,

Tennessee, for Appellant. W. Edward Shipe, BROCK SHIPE KLENK PLC, Knoxville,

Tennessee, for Appellees. ON BRIEF: John M. Lawhorn, Sharon H. Kim, FRANTZ,

MCCONNELL & SEYMOUR, LLP, Knoxville, Tennessee, for Appellant. W. Edward Shipe,

Avery C. Lovingfoss, BROCK SHIPE KLENK PLC, Knoxville, Tennessee, for Appellees.

BLOOMEKATZ, J., delivered the opinion of the court in which WHITE and THAPAR,

JJ., joined. THAPAR, J. (pp. 14–15), delivered a separate concurring opinion.

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 2

_________________

OPINION

_________________

BLOOMEKATZ, Circuit Judge. The legal questions in this appeal arise from a bitter

fight pitting a son against his father and stepfamily over a family business. Scott Gammons

claims that Adroit Medical Systems, Inc., Grazyna Gammons (his stepmother), Kelley Patten

(his stepsister), and Gene Gammons (his father) (collectively, the defendants) diverted company

funds for Grazyna and Kelley’s personal benefit without accounting for the tax consequences.

According to Scott, the defendants fired him because he reported their alleged financial

malfeasance to the Internal Revenue Service. He further claims that if the defendants are not

removed from the business, they will continue misappropriating company funds. Scott brought

an action seeking recovery under federal and state whistleblower statutes and state common law.

The district court granted the defendants summary judgment on all five of his claims, reasoning

that Scott had obtained a legally baseless emergency conservatorship over Gene and used it to

mount a corporate takeover. After the defendants regained control of the family business, that

coup—irrespective of any whistleblowing—motivated their decision to fire Scott, defeating

Scott’s claims as a matter of law. We affirm.

BACKGROUND

Scott’s relationship with Adroit began 29 years before the events of March 2020. Gene

made Scott a 20% shareholder when he started Adroit, an ownership interest Scott still holds

today. Gene retained the other 80% and served as the company’s president. Scott served on the

board and worked at Adroit. Before his firing, Scott’s day-to-day responsibilities at Adroit

“included sales and marketing, social media, product development, patents and trademarks,

supplier and distribution agreements, regulatory compliance, and exports.” R. 42-1, PageID 473.

According to Scott, he noticed a decline in Gene’s health and capacity to run the business

sometime in early 2019. Others in the family noticed too, so Grazyna and Kelley took over more

of Adroit’s day-to-day operations. By July 2019, Scott became suspicious of charges Grazyna

and Kelley were authorizing for themselves as company expenses—expenses that none of the

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 3

defendants reported as Grazyna and Kelley’s taxable income. He claims that when he examined

company financial records, including expense reimbursements, he found payments to personal

credit cards and company employees for non-company labor dating back to 2017. Scott

concluded that Grazyna and Kelley were committing tax fraud, theft, and embezzlement. In

January 2020, Scott provided company documents to the IRS that he believed incriminated

Grazyna and Kelley. It is undisputed that none of the defendants knew what Scott was doing at

that time.

On March 4, 2020, Adroit sent out a notice informing its shareholders that the board

would vote on Grazyna assuming the office of president the following week. Grazyna’s

succeeding Gene as company president mirrored Gene’s wish that she manage his affairs in the

event of his incapacity, as expressed in his durable power-of-attorney documents. That same

day, Scott filed an emergency petition to be designated as Gene’s conservator in Loudon County,

Tennessee probate court. Scott’s conservatorship petition accused Grazyna and Kelley of taking

advantage of Gene and asked the probate court to give him control over Gene’s business affairs.

The probate court granted Scott’s emergency conservatorship petition ex parte on March 5 and

scheduled a follow-up hearing for March 10.

By combining his 20% stake in Adroit and Gene’s 80% controlling interest, Scott’s

conservatorship power over Gene allowed him to act unilaterally. Scott quickly used his

absolute power to add his allies (including his brother Jeff) to the board of directors and oust

Grazyna. He also suspended Grazyna and Kelley’s employment, changed the locks at Adroit’s

offices, and informed the employees that he was in charge. On March 7, Scott also informed

Grazyna, Kelley, and Gene of his conservatorship power and told them that they were under IRS

investigation. IRS agents searched Adroit’s offices the following Monday and took a hard drive

to complete a company financial audit.

But on March 10, Scott’s takeover ended. The probate court dissolved Scott’s power as

emergency conservator over Gene, finding that Gene was not disabled under Tennessee law and

citing Gene’s long-established wish that Grazyna act on his behalf should he become disabled.

In ruling on the matter, the probate court explicitly stated that Scott, in seeking the

conservatorship, “wasn’t trying to act in his dad’s best interest.” R.23-3, PageID 228.

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 4

As soon as he regained his controlling interest in the company, Gene appointed a new

board of directors to replace the existing Scott-controlled board. At the March 11 shareholder

meeting, the reconstituted board of directors, which included Grazyna and Kelley, voted to

terminate both Scott and Jeff’s employment for cause.

In his complaint, Scott alleged that the defendants violated the Taxpayer First Act,

26 U.S.C. § 7623(d), and the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1-304, by

terminating him for reporting their financial misdeeds to the IRS. Scott also advanced claims for

intentional interference with at-will employment, intentional interference with prospective

economic advantage, and civil conspiracy against Grazyna, Kelley, and Gene in their personal

capacities. The defendants moved for summary judgment, arguing that they terminated Scott for

his hostile takeover of the company and that they acted within their corporate capacities in

terminating him. The district court granted the defendants’ motion on all counts. Scott now

appeals.

STANDARD OF REVIEW

Summary judgment is appropriate where the evidence presents no genuine dispute of

material fact such that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ.

P. 56(a). Federal courts must draw all reasonable inferences in favor of the non-moving party in

evaluating a motion for summary judgment. Singfield v. Akron Metro. Hous. Auth., 389 F.3d

555, 560 (6th Cir. 2004). We review de novo the district court’s grant of summary judgment.

Levine v. DeJoy, 64 F.4th 789, 796 (6th Cir. 2023). And we may affirm on any grounds

supported by the record, even if they are different from the grounds the district court relied upon

in reaching its summary judgment decision below. City Mgmt. Corp. v. U.S. Chem. Co., 43 F.3d

244, 251 (6th Cir. 1994).

ANALYSIS

I. Taxpayer First Act

The Taxpayer First Act (TFA) makes it unlawful for an employer to discharge an

employee in reprisal for providing information “the employee reasonably believes constitutes a

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 5

violation of the internal revenue laws or any provision of Federal law relating to tax fraud” to the

IRS. 26 U.S.C. § 7623(d)(1). The plain text of the statute provides that the two-part burden-

shifting framework set forth in 49 U.S.C. § 42121(b)(2)(B) applies to TFA claims. See 26 U.S.C.

§ 7623(d)(2)(B)(iii).1

Under this standard, Scott has to first establish a prima facie case by presenting evidence

that satisfies the following elements: (1) he engaged in protected conduct; (2) the defendants

knew of his protected conduct; (3) the defendants subjected him to an adverse employment

action; and (4) his protected conduct was a “contributing factor” when the defendants subjected

him to the adverse employment action. 49 U.S.C. § 42121(b)(2)(B)(i); Weatherford U.S. v.

Dep’t of Labor, 68 F.4th 1030, 1039–40 (6th Cir. 2023). Scott’s prima facie burden is “much

easier” to satisfy than the burden faced by a McDonnell Douglas plaintiff. Araujo v. N.J. Transit

Rail Operations, Inc., 708 F.3d 152, 159 (3d Cir. 2013). Second, even if the evidence allows

Scott to carry his prima facie burden, the defendants may still defeat the TFA claim by

identifying “clear and convincing evidence” that they would have fired Scott even if he had not

reported them to the IRS. Id. (quoting 49 U.S.C. § 42121(b)(2)(B)(ii)).

Given that we frequently apply the McDonnell Douglas burden-shifting framework to

retaliation claims, the parties and district court concluded that the same standard should apply to

TFA claims, albeit with some modifications for the “contributing factor” and “clear and

convincing” language in § 42121(b)(2)(B). But after this appeal was filed, we explained in

Weatherford v. U.S. Department of Labor that the two-step burden-shifting framework for

statutes incorporating § 42121(b)(2)(B) is “statutorily required” and not interchangeable with the

three-step McDonnell Douglas burden-shifting framework. 68 F.4th at 1040. Although

Weatherford analyzed a different statute that incorporates the § 42121(b)(2)(B) standard, its

reasoning governs TFA claims too. So we proceed by applying the two-part § 42121(b)(2)(B)

burden shifting standard.

1

The TFA states: “[a]n action under subparagraph (A)(ii) shall be governed by the legal burdens of proof

set forth in section 42121(b) of title 49, United States Code.” 26 U.S.C. § 7623(d)(2)(B)(iii).

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 6

A. Scott satisfied the contributing factor element and made a prima facie

case of TFA retaliation.

No party disputes that Scott satisfied the first three elements of his prima facie burden, so

we begin by analyzing Scott’s showing on the contributing factor element. Unlike the

McDonnell Douglas standard, for a TFA claim Scott does not have to prove his protected

conduct was a significant, motivating, substantial, or predominant factor in the adverse personnel

decision. Weatherford, 68 F.4th at 1041; Consol. Rail Corp. v. U.S. Dep’t of Lab., 567 F. App’x

334, 338 (6th Cir. 2014); Araujo, 708 F.3d at 158. Rather, Scott may satisfy his burden with

evidence of retaliation, which, alone or in connection with other factors, tended to affect the

defendants’ decision to fire him. Weatherford, 68 F.4th at 1041 (quotations omitted).

Scott primarily relies upon the compact timeline to demonstrate that reporting his

stepfamily to the IRS was a “contributing factor” in his termination. And we agree. The

defendants learned of Scott’s protected activity (calling the IRS) on March 7—just four days

before they fired him. At the time the defendants first learned of Scott’s IRS reports, they did

not have the ability to fire him. Recall that Scott then had complete control over Adroit as

Gene’s emergency conservator. And the defendants only regained control over Adroit on March

10, after the Tennessee probate court dissolved Scott’s emergency conservatorship. The very

next day, Gene appointed a new board that subsequently voted to fire Scott. So, the defendants

fired Scott as soon as they possibly could after learning of his IRS reports. See Kirilenko-Ison v.

Bd. of Educ. of Danville Indep. Sch., 974 F.3d 652, 665 (6th Cir. 2020) (“[A] court may still

draw an inference of causation where the defendant took advantage of its first meaningful

opportunity to retaliate against the plaintiff.”). Scott’s temporal proximity evidence is sufficient

to carry his burden on the contributing factor element.

The district court’s conclusion that Scott failed to satisfy the “contributing factor”

element was based on its view that, under our precedents, a plaintiff may never meet his or her

prima facie obligation by relying exclusively on temporal proximity evidence. This was error.

In the more stringent McDonnell Douglas context, we have held in rare cases that a plaintiff can

satisfy the contributing factor prong based solely on the temporal proximity between the

protected activity and the adverse action. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 7

(6th Cir. 2008); accord id. at 529 (Batchelder, J., concurring). The purpose of this rule is to

allow an employee to recover against an employer who unlawfully retaliates “swiftly and

immediately upon learning of protected activity.” Mickey, 516 F.3d at 525. It follows that under

the less burdensome § 42121(b)(2)(B)(i) standard, a plaintiff may also satisfy the contributing

factor element using temporal proximity evidence, at least in certain cases. Indeed, the fact that

the defendants fired Scott at their first meaningful opportunity—which was only four days after

learning of the protected activity—would establish a causal connection in a McDonnell Douglas

case; it is sufficient to make the same required showing under § 42121(b)(2)(B)(i). See Mickey,

516 F.3d at 523 (“Where an adverse employment action occurs very close in time after an

employer learns of a protected activity, such temporal proximity between the events is significant

enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie

case of retaliation.”); see also id. (citing McNett v. Hardin Cmty. Fed. Credit Union, 118 F.

App’x 960, 965 (6th Cir. 2004) (plaintiff’s burden to establish a causal connection satisfied with

a 13-day gap)). Therefore, Scott qualifies as a “rare” TFA plaintiff who may rely on temporal

proximity to satisfy his causal connection burden. Mickey, 516 F.3d at 525.

Moreover, the record contains additional evidence that helps Scott satisfy the contributing

factor element. When Scott told Grazyna that the IRS was investigating her for theft,

embezzlement, and income tax violations, Grazyna allegedly responded “yes, it is very serious,”

indicating that she was concerned about the prospect of an investigation. R. 42-1, PageID 486.

IRS agents also showed up at Adroit’s offices, copied Kelley’s hard drive, and searched Adroit’s

business records. It would be reasonable to infer that when Adroit fired Scott, the reconstituted

board—which included Grazyna and Kelley—were angry that Scott placed them under the IRS’s

scrutiny, motivating their decision to terminate his employment.

B. The defendants defeated Scott’s TFA claim with clear and convincing

evidence that they would have fired Scott in the absence of his IRS

reports.

Because Scott established a prima facie case, we move to the second and final step under

the statutory burden-shifting framework, where the onus moves to the defendants. The

defendants may defeat Scott’s TFA claim by supplying “clear and convincing evidence” that

they would have fired Scott even if he had not reported them to the IRS. 49 U.S.C.

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 8

§ 42121(b)(2)(B); Weatherford, 60 F.4th at 1039–40; see, e.g., Hoffman v. Solis, 636 F.3d 262,

272 (6th Cir. 2011) (affirming an agency finding that a defendant-employer would have declined

to promote the plaintiff-employee even in the absence of his protected activities). Clear and

convincing is a high burden, but the defendants meet it here by producing overwhelming and

uncontroverted evidence that they terminated Scott “because of his attempted coup” that he

staged using the emergency conservatorship over Gene. [App. R. 24, PageID 45.]

The record demonstrates that the defendants would have made the decision to terminate

Scott even without his reports to the IRS. See Kuduk v. BNSF Ry. Co., 768 F.3d 786, 793 (8th

Cir. 2014). The attempted coup itself sufficiently motivated the defendants to get Scott out of

the business; the IRS reporting was just icing on the cake. Tellingly, the defendants fired Scott’s

brother Jeff—who was not involved in the IRS reporting—for simply acting as an accomplice in

Scott’s scheme.

Scott’s emergency conservatorship was nothing short of manipulating a legal process to

effectuate a hostile takeover. Imposing a conservatorship has serious consequences, as the

person faces a substantial loss of freedom. See In re Conservatorship of Groves, 109 S.W.3d

317, 329 (Tenn. Ct. App. 2003). The purpose of a conservatorship is not to protect corporate

assets; rather, the proceeding is “intended to promote the best interests of the vulnerable elderly.”

Id. Yet, by his own admission, Scott filed his conservatorship petition to stop Grazyna and

Kelley from utilizing Adroit’s corporate assets in a manner he found objectionable. The petition

did not even mention Gene’s personal affairs or discuss Gene’s day-to-day well-being. But

Scott’s desire to control Adroit’s corporate assets, standing alone, does not provide a legitimate

legal basis to impose a conservatorship on Gene. And Gene had already decided that he wanted

Grazyna to “take care of his business ventures,” as evidenced by his granting her his durable

power of attorney and making her his successor as president, so Scott flouted his wishes. R. 23-

3, PageID 224. Unsurprisingly, the probate court found that Scott “wasn’t trying to act in his

dad’s best interest,” and instead had filed the petition to prevent his father from granting his step-

relatives control of Adroit. Id. at PageID 228.

Once obtaining power over the company, Scott immediately forced his stepfamily out.

Not only did he fire Grazyna and Kelly and remove them from the board, but he also physically

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 9

locked them out of the building. When Scott’s scheme failed, who wouldn’t think that he would

be fired? Even Scott recognized that there was no way for him to coexist with Gene, Grazyna,

and Kelley after initiating his conservatorship maneuver. Clear and convincing evidence shows

that the defendants would have fired Scott even without his reporting anything to the IRS.

Attempting to salvage his TFA claim, Scott characterizes his conservatorship petition and

his IRS reporting as “significantly related,” so that it would be impossible to say that he was

fired for one act and not the other. Appellant Br. at 39. But his conservatorship petition—which

is not a protected activity—was distinct from his IRS reporting, which is. And Scott had already

reported the alleged misdeeds to the IRS by the time he filed for the conservatorship, so his

hostile takeover had nothing to do with an effort to aid in the agency’s investigation. Indeed,

even if Scott were concerned that Gene did not recognize Grazyna and Kelley’s alleged financial

misdeeds, imposing a conservatorship and usurping Adroit’s corporate power went far beyond

exposing their alleged fraud. Scott, therefore, fails to counter the defendants’ clear and

convincing evidence that they would have fired him even if he hadn’t reported them to the IRS.

II. Tennessee Public Protection Act

Like the TFA, the Tennessee Public Protection Act (TPPA) protects employees who

“refus[e] to participate in or . . . refus[e] to remain silent about illegal activities” at their

workplace. Tenn. Code Ann. § 50-1-304(b) (punctuation omitted). The Tennessee Supreme

Court has held that a modified version of the McDonnell Douglas framework applies to TPPA

claims. Williams v. City of Burns, 465 S.W.3d 96, 111–12 (Tenn. 2015). Relevant here, the

TPPA is more stringent than McDonnell Douglas because it requires the plaintiff to show that

unlawful retaliation was the sole reason for the termination. Id. at 110–11.

A. Scott presented a prima facie case of TPPA retaliatory discharge.

At the prima facie stage, Scott had to present evidence satisfying the following elements:

(1) he was an Adroit employee; (2) he refused to participate in or remain silent about illegal

activity; (3) Adroit terminated his employment; and (4) there was a sufficient causal connection

between Scott’s protected conduct and his discharge. Id. at 113–14. Like Scott’s TFA claim,

only the fourth element is in dispute, and, as noted above, the district court concluded that the

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 10

only evidence connecting the defendants’ knowledge of Scott’s IRS reporting to his termination

was temporal proximity. Unlike the federal claim, however, under Tennessee law a TPPA

plaintiff cannot rely exclusively on temporal proximity to satisfy his or her prima facie burden.

Boyd v. Youth Opportunity Invs., No. 3:20-cv-321, 2022 WL 3205013, at *9 (E.D. Tenn. Aug. 8,

2022) (citing Mason v. Seaton, 942 S.W.2d 470, 473 (Tenn. 1997)).

But that is not fatal to Scott’s prima facie case, especially given that at this stage we must

view the record in the light most favorable to Scott’s claim that his protected activity motivated

his discharge. In addition to temporal proximity, the record contains evidence (discussed above)

supporting the reasonable inference that retaliation played into the defendant’s decision to fire

him. The defendants thought Scott’s IRS reports were “very serious” and then experienced an

unannounced IRS raid of their offices, where the IRS copied Kelly’s hard drive for a thorough

audit. R. 42-1, PageID 486–87. That evidence is sufficient to support an inference of a causal

connection between his protected activity and his discharge.

B. The defendants produced a non-retaliatory reason for Scott’s discharge.

Moving to the defendants’ obligation to set forth a non-retaliatory reason for Scott’s

termination, they easily satisfy their burden. The defendants’ claimed basis for Scott’s discharge

is his emergency conservatorship and hostile takeover of Adroit. See Tenn. Code Ann. § 50-1-

304(f) (discussing a TPPA defendant’s burden to produce evidence of a legitimate,

nondiscriminatory reason for the plaintiff’s discharge). And if the conservatorship holds up as a

legitimate part of the defendants’ decision to fire Scott, that’s enough to show that they did not

fire him solely for engaging in protected activity—even assuming his protected activity factored

into the termination decision. Tenn. Code Ann. § 50-1-3-4(b); Jones v. City of Union City,

No. 2013-02358-COA-R3-CV, 2015 WL 9257815, at *6–7 (Tenn. Ct. App. Dec. 17, 2015)

(explaining that the TPPA’s sole causation element has an important impact after the prima facie

stage). Accordingly, Scott must prove that the conservatorship reason was a mere pretext for the

defendants to retaliate against him for his IRS reports. Tenn. Code Ann. § 50-1-3-4(f) (allowing

a TPPA plaintiff to negate the defendant’s basis for termination with evidence that basis was

pretextual).

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 11

C. Scott failed to offer an evidentiary basis to support the inference that the

defendants’ legitimate reason for terminating him was pretext.

There are three routes for Scott to show that the defendants’ claimed reason for

terminating him was pretextual. He can show (1) his emergency conservatorship and takeover

have no basis in fact; (2) his emergency conservatorship and takeover did not actually motivate

the termination; or (3) his emergency conservatorship and takeover are insufficient to explain the

termination. Blizzard v. Marion Tech. Coll., 698 F.3d 275, 285 (6th Cir. 2012); Walls v. Tenn.

CVS Pharmacy, 21 F. Supp.3d 889, 899 (M.D. Tenn. 2014). Scott acknowledges that he filed for

a conservatorship over Gene and took temporary control over Adroit, so the first route is

unavailable. To prevail on the third option, Scott must show that other employees “were not

fired even though they were engaged in substantially identical conduct to that which the

employer contends motivated its discharge of” Scott. Blizzard, 698 F.3d at 286–87 (citation

omitted). The evidence here shows the opposite; as discussed, the defendants fired his brother

Jeff (who did not report anything to the IRS) because Jeff “engaged in substantially identical

conduct”—participating in Scott’s takeover attempt. Walls, 21 F. Supp.3d at 899 (quoting

Blizzard, 698 F.3d at 286–87). As with Jeff, the takeover alone is enough to explain Scott’s

termination.

That leaves the second option, which also fails because Scott cannot prove that the

conservatorship petition was not actually a reason for his termination. Scott points to two

categories of evidence to support his view that this reason is pretextual, but neither is availing.

First, he claims that the defendants knew that he was trying to take over the company as

early as January 2020 but did nothing until they learned of his IRS reports, undermining the

defendants’ contention that corporate overthrow—rather than IRS reporting—motivated his

termination. But Scott didn’t have the means to take over Adroit at that time. It wasn’t until

March 2020, when Scott filed the conservatorship petition, that his opportunity to take over

materialized. So evidence from before he filed the petition cannot show pretext here.

Second, Scott theorizes that in March 2020, once the defendants found out about his IRS

reports and conservatorship petition, his firing was motivated by the former to the exclusion of

the latter. However, nothing in the record supports that assertion. All the defendants’ statements

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 12

mention firing Scott within the context of dissolving the conservatorship petition and regaining

control of the company. Even the private text messages between family members before Scott’s

firing are devoid of any reference to his IRS disclosures. The most favorable construction of the

evidence shows that the defendants may have considered Scott’s IRS reports together with his

conservatorship petition. That’s not enough to show that Scott’s protected activity “was the only

reason for the termination.” Williams, 465 S.W.3d at 110–11 (internal quotation marks and

citation omitted). Therefore, Scott’s TPPA claim cannot survive the defendants’ motion for

summary judgment.

III. Tennessee Common Law Claims

Scott also advances Tennessee common law claims for intentional interference with at-

will employment, intentional interference with prospective economic advantage, and civil

conspiracy against Grazyna, Kelley, and Gene in their personal capacities. Each of these claims

relies on the theory that the individual defendants acted outside Adroit’s corporate interest in

pursuing Scott’s termination. But the individual defendants are protected by the doctrine of

intracorporate immunity because they did not fire Scott to further their own interests, which

dooms Scott’s common law claims.

Under Tennessee law, officers, directors, or employees of a corporation are immune from

tortious interference claims so long as they acted within the scope of their authority and in

furtherance of corporate interests. Forrester v. Stockstill, 869 S.W.2d 328, 334–35 (Tenn. 1994);

Thompson v. Memphis Light, Gas & Water, 416 S.W.3d 402, 413 (Tenn. Ct. App. 2011). That’s

because a tortious interference claim requires three parties—the defendants must stand between

the parties to the relationship. Thompson, 416 S.W.3d at 413. But if the defendants acted

properly within the scope of their corporate capacity, their actions are a single act by a single

corporation. Trau-Med of Am. v. Allstate Ins. Co., 71 S.W.3d 691, 703–04 (Tenn. 2002).

Therefore, a plaintiff can overcome an intracorporate immunity defense by presenting evidence

that the defendants “were acting outside the scope of their duties as officers of the corporation

rather than on behalf of the corporation,” essentially making the defendants a third party to the

relationship between the plaintiff and the corporation. Thompson, 416 S.W.3d at 414 (quotation

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 13

omitted). To do this, a plaintiff needs facts showing that the defendants “would benefit

personally from [the plaintiff’s] discharge.” Id. (quotation omitted).

The individual defendants argue that they fired Scott pursuant to their duties as Adroit

board members and that Scott’s termination was a proper corporate response to his takeover

attempt. Scott, on the other hand, failed to offer evidence that the individual defendants afforded

themselves a personal benefit when they voted to fire him. Scott did not reveal their alleged

financial misdeeds in his capacity as an employee—indeed, his job was not related to the

company’s accounting. He had access to the records as a corporate officer. And he maintains

that access even today. Because Scott is a 20% owner of Adroit, Tennessee law affords him the

right to inspect and copy records of Adroit transactions to make sure business is being properly

conducted and to determine the value of his continuing ownership interest. Tenn. Code Ann.

§ 48-26-102; Daugherty v. Doyle, No. M2013-02509-COA-R3-CV, 2014 WL 6453770, at *10

(Tenn. Ct. App. Nov. 17, 2014). Because the individual defendants did not limit Scott’s

inspection rights by firing him, they also did not afford themselves a personal benefit in taking

that action.

Scott’s pre-termination conduct only bolsters the conclusion that the individual

defendants did not personally benefit when they fired Scott. By March 11, 2020, Scott had

already reported the individual defendants to the IRS and provided the agency with access to

documents. So, the individual defendants did not protect themselves in firing Scott because the

purportedly incriminating documents were already with the IRS.

Because we reject both of Scott’s tortious interference claims, his civil conspiracy claim

must also fail due to the absence of a viable underlying tort claim. ProductiveMD, LLC v.

4UMD, LLC, 821 F.Supp.2d 955, 967 (M.D. Tenn. 2011) (quoting Watson’s Carpet & Floor

Coverings v. McCormick, 247 S.W.3d 169, 180 (Tenn. Ct. App. 2007)).

CONCLUSION

We AFFIRM the district court’s grant of summary judgment in favor of Adroit Medical

Systems, Inc., Grazyna Gammons, Kelley Patten, and Gene Gammons.

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 14

_________________

CONCURRENCE

_________________

THAPAR, Circuit Judge, concurring. I join the majority’s thoughtful opinion. I write to

emphasize two points.

The first is the importance of identifying the relevant timeline. Often in cases like this

one, the time between the protected conduct and the adverse action is not that important. It’s

true, as the majority notes, that four days elapsed between Scott’s protected activity and the

defendants’ decision to fire him. But they had no “meaningful opportunity” to fire Scott during

those four days because they weren’t Board members. See Kirilenko-Ison v. Bd. of Educ., 974

F.3d 652, 664–65 (6th Cir. 2020). And they fired him “immediately” upon regaining the ability

to do so. Cf. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). Moments are

the relevant units of analysis here, not days.

To see why, change the facts slightly. Say the conservatorship proceedings took months

to wrap up instead of a few days. Even though the temporal proximity between the protected

conduct and the adverse action would’ve been several months, Scott still would’ve met his

causation burden. That’s because in each case, the Board fired him right after regaining the

ability to do so. Knowledge of protected activity is inert without an accompanying ability to

retaliate. So I agree with the majority that Scott can rely on temporal proximity alone to meet his

burden. But in my view, the “proximity” here is mere moments, not days.

Second, I write to emphasize the fact-intensive nature of retaliation cases like this one.

Because I believe the correct temporal proximity is mere moments, this is an easy, though “rare,”

case. The line won’t often be this bright. As Mickey puts it, that line lies between “very close in

time” (when temporal proximity alone is sufficient) and “some time” (when it’s not). Id. I can’t

pinpoint the time at which “very close” becomes “some,” and I don’t understand the majority to

be doing so. It suffices to say that as the gap in time increases, its value as circumstantial

evidence decreases. And because the relevant gap here was minimal, its value as circumstantial

evidence is maximal. So Scott can rely on it alone to meet his causation burden.

No. 23-5374 Gammons v. Adroit Med. Sys., Inc. Page 15

I acknowledge the difficulty in applying this blurry standard. A bright-line, good-for-all-

cases rule would give clarity and predictability to litigants. And it would keep us from second-

guessing district courts on what is essentially a judgment call—one on which reasonable minds

might differ. For these types of judgment calls, we often apply deferential, abuse-of-discretion

review. Cf. Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 403–04 (1990) (applying a “unitary

abuse-of-discretion standard” in the Rule 11 context to “fact-intensive, close calls” of law and

fact); accord United States v. Wilson, 597 F.3d 353, 358 (6th Cir. 2010) (“[T]he fact intensive

nature of this inquiry requires us to review the district court’s ultimate decision for abuse of

discretion.”); Cooper Indus. v. Leatherman Tool Grp., 532 U.S. 424, 443–44 (2001) (Scalia, J.,

concurring in the judgment) (explaining that abuse-of-discretion review is appropriate for issues

“resistan[t] to meaningful generalization”); Horne v. Flores, 557 U.S. 433, 493–94 (2009)

(Breyer, J., dissenting) (explaining that abuse-of-discretion review is particularly appropriate

where “entitlement to relief depends heavily upon fact-related determinations”). But our

precedent requires us to review the district court’s decision de novo, which the majority properly

does here.