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Konvalinka v. Fuller

Court of Appeals of Tennessee, Knoxville

May 31, 2019

JOHN PATRICK KONVALINKA, JR.
v.
CRAIG FULLER ET AL.

          Session February 21, 2018

          Appeal from the Circuit Court for Hamilton County No. 12C211 Robert E. Lee Davies, Senior Judge

         In this retaliatory discharge action, the plaintiff filed suit against his former employer under both the common law and the Tennessee Public Protection Act. See Tenn. Code Ann. § 50-1-304 (2014). The plaintiff claimed that he was terminated for voicing his concerns about, or refusing to participate in, illegal activities. The former employer moved for summary judgment arguing, in part, that the plaintiff could not identify a specific illegal activity or a violation of a clearly established public policy. The trial court granted the summary judgment motion and dismissed the plaintiff's claims. Discerning no reversible error, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Joshua H. Jenne, Cleveland, Tennessee, for the appellant, John Patrick Konvalinka, Jr.

          Rosemarie L. Hill and Justin L. Furrow, Chattanooga, Tennessee, for the appellees, Craig Fuller, TransCard, LLC, Ryan Rogers, and Max Fuller.

          W. Neal McBrayer, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Thomas R. Frierson II, J., joined.

          OPINION

          W. NEAL McBRAYER, JUDGE

         I.

         Many of the underlying facts are undisputed.[1] On January 5, 2009, John Patrick Konvalinka, Jr. began working at TransCard, LLC as the director of corporate sales. TransCard provided prepaid debit card services to clients, including corporations, banks, and government entities. During Mr. Konvalinka's employment, Max and Craig Fuller owned and managed TransCard. Craig Fuller served as chief executive officer of the company.

         Max Fuller also had a partial ownership interest in a separate company, U.S. Xpress, Inc. In 2010, he asked Ryan Rogers, vice president of treasury and finance for U.S. Xpress, to become the chief strategy officer for TransCard. Mr. Rogers was never employed by TransCard; he remained at all times an employee of U.S. Xpress. Max Fuller tasked Mr. Rogers with improving TransCard's operations, efficiencies, quality control, and financial performance. Mr. Rogers's responsibilities included things such as "reviewing the accounting, finance [and] cash flow of the business" and ensuring that projects for TransCard clients were "set up properly and completed properly and clean, with as few errors as possible."

         Shortly after beginning his new job responsibilities, Mr. Rogers met with Mr. Konvalinka to discuss TransCard's operations. At the time, Mr. Konvalinka worked primarily in sales. According to Mr. Konvalinka, Mr. Rogers invited him to disclose any problems he perceived in the company's operations. Mr. Rogers assured him that he could speak freely because there would be no repercussions from his disclosures. During this meeting, Mr. Konvalinka reported a number of activities or procedures that he believed were illegal, noncompliant, or simply inefficient. Mr. Rogers thanked him for his "candid and informative" input and promised to address his concerns.

         Mr. Rogers recommended that Mr. Konvalinka move from sales to a business analyst position. The business analyst position focused on improving various aspects of TransCard's operations. Mr. Konvalinka reported to Mr. Rogers and "essentially [did] whatever [Mr. Rogers] instructed [him] to do." According to Mr. Konvalinka, he also continued to handle his previous card management duties and to assist with sales.

         As a business analyst, Mr. Konvalinka repeatedly voiced his concerns about the company's operations to Mr. Rogers, other members of management, and his co-workers. Mr. Konvalinka agreed that the company took steps to correct some of the deficiencies he identified. His main concerns, as later outlined in his complaint, were

1. TransCard action and inaction running afoul of the U.S. Patriot Act;
2. Violations of and/or non-compliance with the Payment Card Industry Security Standards Regulations;
3. Non-compliance with or violation of SAS 70 Type II card industry auditing standards;
4. TransCard action and/or inaction in violation of contracts with sponsors, partners, clients, and network associations;
5. TransCard actions and inactions constituting non-compliance with or violation of ...

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