FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT AUGUST 29, 2001 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 97-8597
D. C. Docket No. 96-00028-CV-1 JOHN B. O’NEAL., III, Plaintiff-Appellant,

versus
JEANETTE G. GARRISON; WAYNE C. PELOQUIN; et al., Defendants- Appellees.
Appeal from the United States District Court for the Southern District of Georgia

(August 29, 2001)

Before BARKETT, GODBOLD and GOODWIN*, Circuit Judges.

_____________ *Honorable Alfred T. Goodwin, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.2 GODBOLD, Circuit Judge: This is a whistleblower suit brought by a corporate officer who was discharged and then sued his employe r and individuals whom he alleges contributed to his termination. Background Plaintiff John D. O’Neal was employed by Master Health Plan, Inc. (MHP) as vice-president. The parties agree th at he was an at-will employee. MHP was wholly owned by Healthmaster, Inc. The defendant Jeanette G. Garrison was president of both companies and controlled both. She owned fifty percent of the stock of Healthmaster and her husband owned the remaining fifty percent. In 1994 the United States government began a criminal investigation of affairs of the two corporations and of Ga rrison. Plaintiff was not a target. He agreed to cooperate with the government, gave substantial assistance, testified before a grand jury, and agreed to testif y at trial. Garrison learned of O’Neal’s cooperation. The grand jury returned an indictmentagainst Garrison, Healthmaster, and others on March 8, 1995. On March 12, Peter Molloy, in-house counsel for Healthmaster, accompanied by armed security guards, intercepted plaintiff at his office and told him that he had been pl aced on administrative leave. O’Neal was3 allowed to remove personal effects and told not to return to the office. The next day large quantities of documents in O’N eal’s office were shredded by employees. O’Neal has not returned to MHP. On March 13 Garrison and her husband, the only directors of MHP, held a meeting at which, they contend, they rem oved O’Neal as president. The next day a letter signed by Garrison was delivered to plaintiff notifying him that he had been placed on administrative leave with pay. In succeeding weeks there was communication between plaintiff and Garrison and the attorney for MHP, the exact dates and sequence of which are disputed. Garrison encountered O’Neal atchurch and asked him whether he was ready to come back to work. In May the attorney for MHP met with O’Neal. Later O’Neal met with Garrison and the attorney . One meeting was at O’Neal’s home. According to O’Neal, at these meetings express or implied proposals were made to reinstate him if he would change his te stimony. According to Garrison and MHP’s attorney, they were only communicating to O’Neal that he should come back to work because the comp any needed him. Shortly before July 2 Garrison hire d G. Wayne Peloquin as new president and CEO of MHP. He reported for work on July 2. On July 7 he terminated O’Neal by signing a letter and sending it to him.1 Kelly’s name appears in some subsequent pleadings. Ultimately the case against him was dismissed. 4 On July 26 Garrison pleaded guilty to a conspiracy to defraud Medicare and nine counts of false statements. Restitution was made to the government of some $11,000,000. Garrison was sentenced to a pr ison term, agreed to sell the assets of Healthmaster, and was excluded from participation in the Medicare program for ten years. O’Neal filed this suit in February1996. The Second Amended Complaint alleges eight counts, variously distributedamong these defendants: Garrison; her son Christopher; Healthmaster; Master Health Plan, Inc.; Peloquin; Molloy; and Kelly, an employee. 1 The counts are: Count I: Conspiracy in violation of 42 U.S.C. § 1985(2): against Garrison, her son Christopher, Peloquin, Hea lthmaster, Kelly, Molloy, and MHP. Count II: Violation of the Federal False Claims Act, 31 U.S.C. § 3730(h): against MHP. Count III: Violation of the Georgia RI CO Act, Ga. Code Ann. § 16-14-1 et.
seq. : against Garrison, Molloy, and Healthmaster. Count IV: Defamation: against Garris on, Kelly, Molloy, and Healthmaster. Count V: State law claim for tortious interference with employment: against5 Garrison, Kelly, Molloy, Peloquin and Healthmaster. Count VI: Fraudulent conveyance of a ssets by Garrison: against Garrison, Healthmaster, and Christopher Garrison, Trustee. Count VII: Contract claim for vaca tion pay and benefits: against MHP. Count VIII: Breach of contract for services: against Garrison.
Count I § 1985(2) Conspiracy This count alleges conspiracy in violation of 42 U.S.C. § 1985(2), against Garrison, her son Christopher, Peloquin, Healthmaster, Kelly, Molloy, and MHP. Section 1985(2) provides: Conspiracy to interfere with civil rights (2) Obstructing justice; intimidating party, witness or juror If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding,6 hindering, obstructing, or def eating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws; The district court granted summary judgm ent on this count to all defendants. Central to this case are Morast v. Lance , 631 F. Supp. 474 (N.D. Ga. 1986), aff’d. , 807 F.2d 926 (11th Cir. 1987), and Haddle v. Garrison , 525 U.S. 121, 119 S. Ct. 489, (1998). In Morasta bank officer sued under § 1985(2) alleging that the defendants conspired to deter him from te stifying as a witness in a proceeding before the Comptroller of the Currency concerning an illegal banking transaction and that he was fired in retaliation fo r his participation in the Comptroller’s investigation. Morast , 631 F. Supp. at 477-78. The district court held that as an atwill employee Morast had no constitutiona lly cognizable interest in his job, therefore his loss of employment did not state a claim under § 1985(2). Id . at 79. On appeal this court affirmed, reitera ting that because Morast was an at-will employee he had no constitutionally protected interest in continued employment, therefore, his discharge was not an actual injury. Morast , 807 F.2d at 930. Michael A. Haddle sued in the same di strict court as O’Neal, alleging a § 1985(2) conspiracy. Haddle , 525 U.S. at 123. Haddle’s case and O’Neal’s case arose out of the same series of ev ents. Haddle was an at-will employee of7 Healthmaster. Id . He was terminated and then filed a suit alleging a § 1985(2) conspiracy and state claims as well. Id . He alleged a conspiracy by Garrison and others to have him fired from his job inretaliation for cooperating with a grand jury subpoena issued in the Garrison inve stigation and to deter him from testifying at a federal criminal trial of Garrison. Id

. According to Haddle’s complaint he c ooperated with federal agents in the investigation of Garrison and others and a ppeared before the grand jury pursuant to a subpoena, although he did not testify because of the “press of time.” Id. He was, however, expected to appear as a w itness in the criminal trial resulting from the indictment. Id . He stated two grounds for relief under §1985(2), conspiracy to deter him from testifying in the upcoming cr iminal trial and conspiracy to retaliate against him for attending the grand jury proceeding. Id . And he alleged that he had been injured in his personal prope rty by the acts of the defendants. Id

. The district court dismissed the complaint on a Federal Rule of Civil Procedure Rule 12(b)(6) motion on the ground that Morastrequired it to do so. Id

. The Eleventh Circuit affirmed without published opinion. Haddle v. Garrison , 132 F.3d 46 (11th Cir. 1997). On appeal the Supreme Court reversed on the ground that Morast , on which the district court and c ourt of appeals had relied, had been wrongly decided. Haddle , 525 U.S. at 125-26. The Court held that the nature of2 On remand of Haddle the § 1985(2) claim was tried before a jury, which returned a verdict for the plaintiff on that claim and awarde d damages. On appeal the Eleventh Circuit affirmed without published opinion. Haddle v. Garrison , 253 F.3d 709 (11 th Cir. 2001). The state law claims were previously dismissed w ithout prejudice by the district court on June 25, 1996, and neither party sought review of that order. 8 the wrong at which § 1985(2) is directed is essentially third-party interference with at-will employment. Id . at 126. It held that the El eventh Circuit’s conclusion that petitioner must state an injury to a “c onstitutionally cognizable property interest” was incorrect and that the gist of the wrong at which § 1985(2) is directed is not deprivation of property but intimidation or retaliation against witnesses in federal court proceedings. Id . at 125. The Court pointed out that protection against thirdparty interference with employment is also protected under state law, including the law of Georgia. 2 Id . at 127. The Supreme Court’s decision in Haddle requires that the judgments on Count I must be reversed, and they are REVERSED and
REMANDED.
Count II False Claims Act Plaintiff claimed a violation by MHP of the False Claims Act, 31 U.S.C. § 3730(h), arising out of his suspension and firing in retaliation for his assistance to the government. This Act authorizes suit by a private person who has been discriminated against in his employment because of lawful acts done by the9 employee in furtherance of an action brought under § 3730. 31 U.S.C. § 3730(b). On this count a jury returned a verdict in favor of O’Neal and against MHP, and judgment was entered in favor of O’Neal. The court denied MHP’s motion for judgment as a matter of law. This count is the subject of a separate appeal.
Count III Georgia RICO Plaintiff’s RICO claim is asserted against Garrison, Molloy and Healthmaster under the Georgia statute, O.C.G.A. § 16-14-1 et . seq . The Georgia statute is essentially the same as the federal RICO statute. See Morast , 807 F.2d at
933. The district court granted summary judgments to all defendants on the RICO claim on the ground that, as provided by Morast , the predicate acts relied upon - placing O’Neal on administrative leave and subsequently firing him - were lawful acts. Haddle requires that the summary judgment must be REVERSED and REMANDED. Remand would be futile, however, if plaintiff has not stated a RICO cause of action. We hold that he has. The Georgia Code sets out prohibited activities: (a) It is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any10 enterprise, real property, or personal property of any nature, including money. (b) It is unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity. (c) It is unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b) of this Code section. O.C.G.A. § 16-14-4. We look to section 16-14-3 for the allegations that must be set out to state a cause of action for violation of section 16-14-4. See O.C.G.A. § 16-14-3. The defendant must engage in “racketeering activity.” See § 16-14-3(9)(A). Racketeering activity means to commit, atte mpt to commit, to solicit, coerce, or intimidate another person to commit any cr ime that is chargeable by indictment under prescribed laws of Georgia. See id . The prescribed laws are listed in (9)(A) and (9)(B). See § 16-14-3. The racketeering activity alleged in th is case is obstruction of justice. Obstruction of justice appears in section 16-14-3(9)(B). Subsection (9)(B)(xxix) sweeps into the Georgia list conduct defined as racketeering activity under 18 U.S.C. § 1961, which also includes obstruction of justice. RICO requires a pattern of racketeering activity, which consists of at least11 two incidents of racketeering activity (“pr edicate acts”) that have same intent, results, methods of commission or otherwise are interrelated and not isolated. See § 16-14-3(8). The incidents of racketeeri ng alleged in this case as constituting a pattern are plaintiff’s being placed on admi nistrative leave, the termination of his employment, and the similar and interrelated termination of Michael A. Haddle. Plaintiff alleges that these incidents occurred not to further any business interest of the defendants but to protect them from cr iminal prosecution. Plaintiff complains that the defendants acted to deter O’Neal and Haddle from freely giving truthful testimony before the court or to injure them because they did so testify. To recover under civil RICO plaintiff mu st allege that he suffered injury as a proximate result of the predicate acts. O’Neal alleged injury, consisting of the loss of work and status by being placed on administrative leave, the loss of his job and the benefits accruing from it, and the in jury to him in his profession by being terminated. Plaintiff has adequately touched the ba ses. I am doubtful that a plaintiff must include in his allegations the provisi ons of section 16-14-4(a), (b), and (c), “. . . to acquire or maintain . . .” and “. . . to conduct or endeavor . . . .” In any event O’Neal alleged these provisions. The judgments on Count III are REVERSED and REMANDED.12 Count IV Defamation O’Neal’s defamation claim is not involved in this appeal.
Count V Tortious Interference With Plaintiff’s Employment With respect to the claim against Peloquin, summary judgment granted to him on this count was erroneous. The c ourt, in its order of February 25, 1997, pages 8 and 15, stated that it had determin ed that Peloquin, as president and CEO of MHP, had the authority to terminat e O’Neal. The grounds for these findings were not stated and we are not able to determine the factual basis for them. In June 1991, May 1993, and on July 28, 1994, O’Neal was elected by the Board of Directors as vice-president, fo r a one-year term and thereafter until his successor was elected and qualified. Under Georgia law the board of directors may remove a corporate officer for cause. See McCreery v. RSA Mgmt., Inc. , 287 S.E.2d 203, 205 (Ga. 1982); Ga. Code Ann. § 14-2-843. Fletcher Cyc. of Corps. , § 357 states: The removal [of a corporate officer] must ordinarily be by the body or officer authorized to elect or appoint . . . . . . . Where the power to re move an officer is vested in the directors, action by them is necessary to constitute a removal . . . .13 . . . Absent express authority, the president of a corporation has no power to remove an officer appointed by the board of directors where the power of removal is in the board . . . . The parties have not referred us to any Georgia law recognizing implied power of a corporate president to discharg e another officer. The district court held that there was no evidence that the corpor ate charter or policies of MHP forbade the president to discharge an officer, but that conclusion does not establish that the president possessed the authority that Peloquin asserts. Garrison testified that at the time O’N eal was discharged she had ceded all authority over the company to Peloquin. Sh e stated that she resigned as president and that Peloquin refused to accept the position until he was given a free hand. Whether she could “cede” authority thatshe possessed, what that authority embraced, when and how the “cession” wa s made and when it was effective are not revealed. Minutes of board meeti ngs were produced, but there appear to be none referring to Peloquin’s being appointedas president until after O’Neal was fired. Under Georgia law an at-will employee has no cause of action against his employer for wrongful discharge, regardless of its motive. Runyan v. Econ. Lab., Inc., 248 S.E.2d 44, 46 (Ga.Ct.App. 1978). However, a manager who has no authority to discharge an at-will employ ee can be a third person tortfeasor for14 wrongfully procuring the employee’s discharge. See Georgia Power v. Busbin , 250 S.E.2d 442, 444 (Ga. 1978); Campbell v. Carroll , 174 S.E.2d 375, 377-78 (Ga. 1970). The record does not reveal th at Peloquin had the power to discharge. The summary judgment in favor of Peloquin is REVERSED and REMANDED. With regard to the claim against Garrison, summary judgment granted to her on this count is not erroneous. Ga rrison was angry with O’Neal, she made threats to crush employees who testified against her, and she employed Peloquin who soon thereafter fired O’Neal. Bu t Peloquin and Garrison testified that Peloquin had no discussion with Garrison about terminating O’Neal and that he alone made the decision because O’Neal was on the payroll but performing no duties. On the summary judgment record before the district court at the time it ruled, we cannot say that the district cour t erred with respect to Garrison’s role in the discharge of O’Neal. It is not disputed that Garrison placed O’Neal on administrative leave, and it is not seriously questioned that she had the authority to do so. The judgment on this count with respect to Garrison is AFFIRMED. The district court granted summary judgment to Molloy. It held that Molloy participated in plaintiff’s discharge only by delivering the discharge letter to him, that he was only acting as a messenger, and that this was insufficient to show tortious interference. The summa ry judgment to Molloy is AFFIRMED, and15 the summary judgment to Healthmaster is also AFFIRMED since its responsibility is derivative of actions of its employee Molloy.
Count VI Fraudulent Transfer of Assets The jury returned a verdict for Garrison on the Count VIII claim for breach of contract. The court held in its order of July 2, 1997, footnote 3, that when the verdict was returned on O’Neal’s contractclaim, the question of whether Garrison fraudulently transferred assets became mootbecause the fraudulent transfer action could be brought only by a creditor and Garrison was not a creditor. Plaintiff contends that the fraudulent transfer claim must be reinstated if it is determined that Garrison is indebted on any claim other than Count VIII because she then will have become a creditor. It may be that the status of Garrison as a creditor is not limited to obligations alleged in Count VIII. However, plaintiff’s notice of appeal did not list as an issue the dismissal of the Count VI fraudulent conveyance claim, therefore plaintiff’s claim for possible reinstatement is not before us.
Count VII Contract for Vacation Pay and Benefits Plaintiff claims a contract for v acation pay and benefits provided under state law against MHP. A jury returned a verdict in O’Neal’s favor. This count is16 the subject of a separate appeal.
Count VIII Breach of Contract Claim O’Neal alleges that Garrison failed to comply with a promise to give plaintiff a twenty percent interest in MH P as compensation for his services to that company. This count was tried to a ju ry, and the jury returned a verdict for Garrison. At trial plaintiff requested in writing that the court instruct the jury on promissory estoppel. The court refused on the ground that promissory estoppel had never been an issue in the case and was not referred to in the pretrial order. It had not been pleaded, and plaintiff did not ask leave to amend. Plaintiff urged that the court’s pretrial order form allowed only a single page to set out in narrative form the plaintiff’s claims and that he did not have enough room to include everything. Also, plaintiff’s counsel did not list in the pre-trial order the Georgia promissory estoppel statute. And counsel was required to submit suggested findings and interrogatories for the jury but did not include promissory estoppel. The court did not err in denying the request to instruct on promissory estoppel. The judgment on Count VIII is AFFIRMED. Summary For ease in understanding we have pr ovided for reversal or remand on each17 count where relevant. All other claims are affirmed or are not raised in this appeal.