IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 8, 2010 Session
LESTER MITCHELL LAWSON, III v. ANTHONY ADAMS
Appeal from the Circuit Court for Rutherford County
No. 57387 Robert E. Corlew, III, Judge
No. M2009-02581-COA-R3-CV - Filed October 6, 2010
Lester Mitchell Lawson, III (“Plaintiff”) filed this wrongful discharge lawsuit against his
former employer, Anthony Adams (“Defendant”). Plaintiff claims he was illegally
discharged for refusing to remain silent about and refusing to participate in illegal activities.
Plaintiff brought both common law and statutory claims. The Trial Court granted
Defendant’s motion for summary judgment on all claims after finding that the undisputed
material facts established that Plaintiff failed to report the alleged illegal activity to an entity
other than the person engaging in the claimed illegal activity. We affirm the grant of
summary judgment to Defendant on Plaintiff’s common law and statutory claims that he was
discharged for refusing to remain silent about illegal activities. We vacate the Trial Court’s
grant of summary judgment on Plaintiff’s common law and statutory claims that he was
discharged for refusing to participate in illegal activities.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part and Vacated in Part; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.
Jerry E. Farmer, Murfreesboro, Tennessee, for the Appellant, Lester Mitchell Lawson, III.
Wm. Kennerly Burger, Murfreesboro, Tennessee, for the Appellee, Anthony Adams.
OPINION
Background
This retaliatory discharge lawsuit was filed by Plaintiff in July 2008. In his
complaint, Plaintiff claimed that he was unlawfully terminated on April 15, 2008 from his
job with Defendant because he refused to participate in, or to remain silent about, activities
of Defendant which allegedly were in violation of the law or in violation of clear public
policy. According to the complaint:
The Plaintiff became employed by Defendant on or about
February of 2003.
The Plaintiff remained employed with Defendant until on
or about April of 2008. . . .
The Plaintiff’s duties involved operating trucks and
heavy equipment including dump trucks, trailers, and
construction equipment.
The Plaintiff was expected to work under unsafe working
conditions and to operate trucks and equipment which were
unsafe.
Plaintiff experienced several close calls, accidents, and
near accidents by operating unsafe equipment at Defendant’s
insistence.
Plaintiff complained repeatedly to Defendant about
having to operate equipment that was unsafe.
Plaintiff refused to participate in, or to remain silent
about, activities of Defendant which were in violation of the law
or clear public policy of the State of Tennessee.
Defendant discharged, or constructively discharged,
Plaintiff on April 15, 2008.
Defendant’s discharge or constructive discharge of
Plaintiff was the result of Plaintiff’s refusal to participate in, or
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to remain silent about, activities of Defendant which were in
violation of the law or clear public policy of the State of
Tennessee.
This action is brought pursuant to the provisions of TCA
§ 50-1-304 and pursuant to the common law of retaliatory
discharge. (original paragraph numbering omitted)
Plaintiff sought compensatory and punitive damages in an unspecified amount, as well as an
award of reasonable attorney fees.
After answering the complaint and denying any liability to Plaintiff, Defendant
filed a motion for summary judgment. According to the motion:
Concisely stated, Defendant asserts that the complaint is
frivolous. Essentially, the Plaintiff contends that his opinions,
as an employee, regarding the maintenance and condition of the
Defendant’s equipment should be superior, and controlling, over
the opinions of the owner and management of the Defendant’s
business. As recited in the attached affidavit, no factual basis
exists for a contrary conclusion . . . .
In support of his motion for summary judgment, Defendant filed his affidavit.
Defendant is the owner of Adams Excavating Company. Defendant acknowledged that
Plaintiff worked for him from February 2003 through the date “of his voluntary departure”
in April 2008. Defendant then stated:
Mr. Lawson’s duties admittedly involved operating
trucks and heavy equipment, including dump trucks, trailers, and
related construction equipment, all within the scope and course
of his routine work activities. As Mr. Lawson’s employer and
supervisor, I am aware of no “. . . close calls, accidents (or near-
accidents) related to Mr. Lawson’s performance of his work
activities.” One accident in which Mr. Lawson was involved
resulted from his turning a truck over by parking incorrectly on
a hillside. It had nothing to do with the condition of the truck.
A second minor accident involved his dumping of concrete
debris, and had nothing to do with the condition of the vehicle.
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At no time was the Plaintiff, Mr. Lawson, threatened or
admonished from disclosure of any fact regarding his work
activities (including, specifically, safety conditions pertaining to
work circumstances or equipment conditions). At no time was
the Plaintiff instructed or told to refuse to participate in, or
remain silent about, activities of the employer which were in any
violation of the laws of the State of Tennessee, the United States
of America, or the clear public policies of either the state or
federal government. Mr. Lawson was not terminated, although
he engaged in conduct that would have justified termination. On
the date of his resignation, he was late to a job site, and left an
expensive piece of equipment in the parking lot. When I asked
him about the situation, he cursed and threatened me, using
various obscenities, and telling me that, “. . . if I would come
down there, he’s whip me.” He left and never came back. My
business, like all other construction business in Tennessee, is
subject to inspections by both the Tennessee and the federal
Occupational Safety and Health Administration (OSHA).
I have never been fined, sanctioned, or otherwise
admonished by any city, county, state, or federal department or
agency regarding any safety violations. The equipment provided
to my employees is safe and adequate for the performance of all
work duties. From a business perspective, it would make no
sense for my business to insist on my employees’ use of
dangerous equipment, since the ultimate result would be more
costly than any slight benefit which could result from irrational
“penny-pinching” at the expense of my employees’ safety. I
have never had unusually high incidents of workers’
compensation claims. In the minimal workers’ compensation
claims experienced by my business, I have never been
sanctioned or admonished by the Tennessee Department of
Labor for any violations of the Tennessee Workers’
Compensation statute.
I am unaware of any factual basis for any claim by Mr.
Lawson that:
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(a) The work circumstances at our job sites (or the
equipment utilized) were in any way unusually or
inherently dangerous;
(b) That Mr. Lawson, or any other employee, was in
any way, or at any time, sanctioned, threatened, or
punished in any way in retaliation for the
requirement that they “remain quiet” about any
such alleged conditions.
Both factual allegations are patently false and are without
factual merit. My equipment is safe, and is typical for
construction equipment maintained and operated by similar
construction operations in Rutherford County, Tennessee. There
are no unusual maintenance issues.
I have never engaged in any activity, directly or
indirectly, personally or through any agent, which would
constitute a communication to Mr. Lawson (or any other
employee) that they should “remain silent” about any equipment
maintenance issues. Concisely stated, I simply do not know
what Mr. Lawson is talking about. (original paragraph
numbering omitted)
In response to Defendant’s motion for summary judgment, Plaintiff filed his
affidavit which states, in relevant part, as follows:
I became employed by Anthony Adams d/b/a Adams
Excavation, on or about February of 2003.
My duties involved operating trucks and heavy
equipment including dump trucks, trailers, and construction
equipment.
My main job was to drive a 1996 Mack dump truck. I
also had to pull a pentle hitch trailer with the dump truck. The
dump truck had air brakes. The trailer had air brakes. Air to the
trailer brakes had to be supplied from the dump truck.
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The dump truck has always been hard to stop since I
worked there. My employer has had the brakes worked on many
times, but they never worked properly while I worked there.
About a year before I lost my job, while greasing the
dump truck I discovered that the dump truck was missing bolts
from out of the frame. And the ones that were present were
loose. I attempted to tighten the remaining bolts, and reported
the missing bolts to my employer. My employer instructed me
to drive the truck with missing bolts, or just “go home.” I
understood this to mean I would lose my job. I followed my
employer’s instructions and drove the truck with missing bolts.
My employer told me he would get new bolts put in the frame.
Up until the last day of my employment, the missing bolts were
never replaced.
About six months before I lost my job, while greasing the
dump truck, I discovered that the dump truck had a crack in the
frame. I reported this to my employer. He said he would get his
welder on it one day. He told me to go ahead and drive the truck
with the crack in the frame. I followed my employer’s
instructions. On the day I lost my job, the truck still had a crack
in the frame.
On frequent occasions throughout my term of
employment, my employer used the tactic of telling me and
others “Either do it or just go home,” when confronting me and
other employees with unsafe or undesirable tasks.
The dump truck had one front axle and three rear axles.
The two back rear axles were drive axles. Only one of them
worked.
The front most rear axle was a drop axle. It could move
up and down and is supposed to be used to help take the weight
off of the drive axles when the truck is loaded. One of the tires
on the drop axle blew out some time after I had discovered the
missing frame bolts but before I had discovered the crack in the
frame. I reported this to my employer and told him I did not
want to drive the truck with the blown out drop axle tire. My
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employer instructed me to drive the truck anyway, but to drive
it slow and not to use the drop axle to help take the weight off
the driving axles while the truck was loaded. Due to my
employer’s frequent use of the tactic of telling me and others
“Either do it or just go home,” I understood I would lose my job
if I did not follow my employer’s instructions. My employer
had the blown out drop axle tire repaired shortly before I lost my
job.
The dump truck was equipped with a jake brake. A jake
brake uses engine compression to help the truck slow down.
About three months before I lost my job, the jake brake stopped
working. I reported this to my employer. My employer
instructed me to drive the truck anyway, but to drive slow. I
understood I would lose my job if I did not follow my
employer’s instructions, so I did. The jake brake was still not
operational on the day I lost my job.
Most of my job involved using the dump truck to pull the
pentle hitch trailer loaded with a backhoe or some other piece of
heavy equipment. About three weeks before I lost my job, I
noticed the brakes on the pentle hitch trailer stopped working.
I was pulling the trailer, and when I looked back I noticed that
the trailer wheels were locked down and smoking. The trailer
brakes would not release. I reported this to my employer. My
employer instructed me to disable the trailer brakes and continue
my journey that day. The trailer brakes can be disabled by
disconnecting the trailer from the air source on the dump truck.
I told my employer I would follow his instructions on this
occasion, but that he needed to get the trailer brakes fixed for
me to pull the trailer again. My employer assured me that the
trailer would not be needed again for a few more weeks. I
understood that I would lose my job that day if I did not pull the
trailer without any trailer brakes.
On the morning of the day I lost my job, I arrived at the
shop at 6:30 a.m. The pentle hitch trailer, loaded with the
backhoe, was hooked up to the dump truck, but the air was not
connected to the trailer. I called my employer and asked him if
he’d had the brakes fixed. My employer told me no, but to drive
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the dump-truck trailer combination as it was, with the trailer
brakes disabled. My task was to work with Harold Whitworth
to use the backhoe to load the dump truck with dirt and drive the
dump truck to another job site that my employer would direct
me to. I protested that I did not want to drive the combination
with no trailer brakes. My employer instructed me to go slow
and take the back roads. My employer told me if I did not want
to drive the truck as it was, I should “just go to the house.” I
understood that if I did not follow my employer’s instructions,
I would lose my job.
I drove the truck/trailer combination from the shop on
Mooreland Ln. and had to stop at the stop sign at Franklin Rd.
From a speed of 20 m.p.h. I needed 200 feet within which to
stop. The other stops I had to make that morning were at
Manson Pike, Baker Rd., Old Nashville Hwy., on a crossroad at
Chicken Pike, at Nissan Dr., and at the job site. Each time I had
to stop, by the time I got the truck slowed down to 20 m.p.h. I
needed at least 200 more feet to stop it. I had experienced
driving the dump truck without the trailer, both loaded and
unloaded, with the brakes in the condition they were in that day.
Unloaded I needed at least 100 feet to stop the truck from 20
m.p.h. Loaded I needed at least 150 feet to stop the truck from
20 m.p.h. On the day I lost my job, my employer called me to
find out how far I had gotten in accomplishing the task. My task
was to drive a dump truck with bolts missing from the frame
that had gone about a year without repair, a crack in the frame
that had gone about six months without repair, truck brakes that
did not function properly, a jake brake that did not function at
all, pulling a heavily loaded trailer with no brakes on the trailer
at all. Then to haul dirt in the dump truck with inadequate
brakes. My employer was cursing me because he felt I was
going too slow. Basically, my employer was requiring me to
operate unsafe equipment, which I felt I had to do slowly and
carefully to keep my job, and my employer was rushing me to
operate the unsafe equipment more speedily. I understood that
if I did not follow my employer’s instructions, I would lose my
job. I could not bring myself to operate this unsafe equipment
in a careless and speedy manner, and told my employer so. My
employer’s response was to “shut the f- - - up,” and that if I did
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not follow his instructions, he had nothing else for me to do. I
understood my employment to be terminated. There was no
reason for my employer to terminate my employment other than
my refusal to follow his instructions to hurry up with the unsafe
dump truck and trailer.
During my employment I experienced several close calls,
accidents, and near accidents by operating unsafe equipment at
my employer’s insistence. On one such occasion, I was
following my employer’s instructions while dumping a load of
dirt and as a result of doing what my employer instructed me to
do the truck bed was too high for the amount of dirt in it and the
truck overturned, injuring me. My employer paid for my
medical treatment because he was not covered by workers
compensation insurance at the time. On another occasion, the
truck was loaded with rocks on one side and dirt on the other, so
that when I dumped the load, the rocks slid out but the dirt
stuck, causing the truck to overturn again. That day my
employer admitted it was unsafe to drive the truck because of
rain, but he made me drive it anyway.
I complained repeatedly to my employer about having to
operate unsafe equipment, but my employer insisted that I
continue to operate equipment that was unsafe, making it clear
to me that if I refused to do so I would lose my job, due to his
frequent use of the tactic of telling me and others “Either do it
or just go home.” There were times when other employees
chose to go home, and they didn’t get their jobs back.
My employer had many opportunities to repair the unsafe
equipment, but other than replacing the blown out drop axle tire,
he never did so during my employment.
I adjusted the brakes from time to time, but long before
the last trip I made for the Defendant, there was no more
adjustment left on the brakes.
The brakes on the dump truck were not adequate to
control the movement of the dump truck or to stop and hold the
dump truck, whether loaded or unloaded.
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The service brakes on the dump truck were not adequate
to stop the dump truck within a distance of 30’ on dry level
pavement from a speed of 20 m.p.h., whether loaded or
unloaded. The same was true of the combination of the dump
truck with the trailer, whether loaded or unloaded.
The parking brakes on the dump truck were not adequate
to hold the dump truck on all of the grades which the dump
truck was operated. They would hold it on flat ground, but I
didn’t always drive it on flat ground. They couldn’t stop the
truck within 55’ from 20 m.p.h.
At my employer’s insistence, I drove the loaded dump
truck without using the drop axle to locations where I later
observed material injury to the road surface. I believe the injury
to the road surface was caused by the overloaded nature of my
drive axles unassisted by the drop axle.
It is impossible to operate the dump truck/trailer
combination in the condition they were in during my
employment in a careful and prudent manner. Mere operation
of that equipment by definition meant you had to be careless and
imprudent. Because of my employer’s insistence that I operate
unsafe equipment in an unsafe manner as a condition of my
employment, my working conditions were so intolerable that
refusing to continue working in an unsafe manner was my only
reasonable alternative. . . . (original paragraph numbering
omitted)
The Trial Court initially denied Defendant’s motion for summary judgment
until adequate discovery could be undertaken. Once the parties had an adequate opportunity
to conduct necessary discovery, Defendant renewed his motion for summary judgment. In
his renewed motion for summary judgment, Defendant furnished Plaintiff’s deposition
testimony where he acknowledged that he never reported any complaints to anyone other
than Defendant. Plaintiff testified:
Q. Okay. Did you ever - before you ended up leaving there,
did you ever file any kind of complaint with the
Tennessee Department of Transportation or the
Tennessee Department of Safety?
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A. No, sir, just complained to Anthony Adams only.
Q. Why didn’t you do as much as even an anonymous phone
call to them if you had concerns about the safety of those
vehicles out on the public highways?
A. I figured he was the owner, he should - [it’s] his
responsibility to take care of it.
Q. Well, but you’re the driver and you’re the one who [is]
out on the highway attempting to stop a truck that may
be . . . behind a car that may have a family in it. On that
level of concern, why would you not have reported that
to the proper authorities if you really thought it was a
serious problem?
A. I would just do like he told me, take my time. . . .
In September of 2009, the Trial Court entered a Memorandum Opinion
granting Defendant’s motion for summary judgment. In its Memorandum Opinion, the Trial
Court noted that there were conflicting decisions by this Court as to what is required to state
a cause of action under the common law and the Tennessee Public Protection Act, Tenn.
Code Ann. § 50-1-304. More specifically, in Collins v. AmSouth Bank, 241 S.W.3d 879
(Tenn. Ct. App. 2007), the Middle Section of this Court discussed the common law and
statutory causes of action for retaliatory discharge as follows:
To prevail on a claim of common law retaliatory discharge, an
employee must prove (1) that an at-will employment relationship
existed between the employee and the employer, (2) that the
employee was discharged, (3) that the employee was discharged
for attempting to exercise a statutory or constitutional right, or
for any other reason that violates a clear public policy, and (4)
that such action was a substantial factor in the employer’s
decision to discharge the employee. See Guy v. Mut. of Omaha
Ins. Co., 79 S.W.3d at 535; see also Anderson v. Standard
Register Co., 857 S.W.2d 555, 558 (Tenn. 1993).
In addition to a common-law action for retaliatory
discharge, the Tennessee General Assembly has adopted a
statutory cause of action under the Tennessee Public Protection
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Act, commonly called the “Whistleblower Act.” Tenn. Code
Ann. § 50-1-304(a) provides that no employee shall be
discharged solely for refusing to participate in or to remain
silent about illegal activities. “Illegal activities” include state
and federal criminal and civil violations, as well as violation of
any regulation affecting public health, safety, and welfare.
Tenn. Code Ann. § 50-1-304(c). Therefore, the primary
difference between the common law and statutory claims is that,
to benefit from statutory protection, an employee must
demonstrate that his or her refusal was the sole reason for his or
her discharge. Tenn. Code Ann. § 50-1-304(a); Guy v. Mut. of
Omaha Ins. Co., 79 S.W.3d at 535-37.
* * *
Persons asserting either a statutory or common-law
whistleblowing claim must prove more than that their employer
violated a law or regulation. Guy v. Mut. of Omaha Ins. Co., 79
S.W.3d at 538; Franklin v. Swift Transp. Co., Inc., 210 S.W.3d
at 531. They must prove that their efforts to bring to light an
illegal or unsafe practice furthered an important public policy
interest, Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d at 538 n.4;
Franklin v. Swift Transp. Co., Inc., 210 S.W.3d at 531, rather
than simply their personal interest. Guy v. Mut. of Omaha Ins.
Co., 79 S.W.3d at 538 n.4. While they need not report the
suspected illegal activities directly to law or regulatory
enforcement officials, they must make a report to some entity
other than the person or persons who are engaging in the
allegedly illegal activities. Emerson v. Oak Ridge Research,
Inc., 187 S.W.3d 364, 371 (Tenn. Ct. App. 2005); Merryman v.
Central Parking System, Inc., No. 01A01-9203-CH-00076, 1992
WL 330404, at *7 (Tenn. Ct. App. November 13, 1992),
overruled on other grounds by Anderson v. Standard Register
Co., 857 S.W.2d 555 (Tenn. June 28, 1993), as recognized in
Hill v. Perrigo of Tennessee, No. M2000-02452-COA-R3-CV,
2001 WL 694479, at *5 (Tenn. Ct. App. June 21, 2001).
Collins, 241 S.W.3d at 884-85.
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The above-quoted discussion in Collins was interpreted by the Trial Court in
the present case, as well as the Western Section of this Court in Gossett v. Tractor Supply
Co., Inc., No. M2007-02530-COA-R3-CV, 2009 WL 528924 (Tenn. Ct. App. Mar. 2, 2009)1 ,
as requiring a plaintiff to make a complaint to someone other than the person engaging in the
illegal conduct when a plaintiff alleges a termination for refusing to participate in or refusing
to remain silent about illegal activity. The Western Section of this Court in Gossett disagreed
with the holding in Collins and concluded that when a plaintiff alleges that he or she was
terminated for refusing to participate in illegal activity, the plaintiff does not have to prove
that he or she made a complaint about the illegal conduct. See VanCleave v. Reelfoot Bank,
No. W2008-01559-COA-R3-CV, 2009 WL 3518211 (Tenn. Ct. App. Oct. 30, 2009), no
appl. perm. appeal filed:
In Gossett [v. Tractor Supply Co., No. M2007-02530-COA-R3-
CV, 2009 WL 528924 (Tenn. Ct. App. Mar. 2, 2009)], we held
that reporting illegal activity is not an essential element of a
claim of retaliatory discharge for refusal to participate. Gossett,
2009 WL 528924, at *6-14. We rejected dicta in Collins v.
AmSouth Bank, 241 S.W.3d 879, 885 (Tenn. Ct. App. 2007) to
the extent that it could be interpreted to require reporting of the
alleged illegal activity in a claim of retaliatory discharge for
refusal to participate. Gossett, 2009 WL 528924, at *14.
VanCleave, 2009 WL 3518211, at *7 n.4.
Because the Trial Court in the present case is located in the Middle Section of
this State, and because Collins is a reported decision 2 and Gossett is not, the Trial Court
followed Collins and concluded that because Plaintiff admittedly did not report the alleged
illegal activity to anyone other than Defendant, Plaintiff failed to state a claim under either
the common law or the Tennessee Public Protection Act for allegedly refusing to participate
in or to remain silent about illegal activity. In addition, the Trial Court concluded that
Plaintiff failed to establish that his efforts “to bring to light an illegal or unsafe practice
furthered an important public policy interest . . . rather than simply his personal interest.”
1
As will be discussed later in this Opinion, the Tennessee Supreme Court granted permission to
appeal in the Gossett case and affirmed the judgment of the Western Section of this Court. See Gossett v.
Tractor Supply Co., Inc., No. M2007-02530-SC-R11-CV, — S.W.3d —, 2010 WL 3633459 (Tenn. Sept. 20,
2010).
2
Collins was reported pursuant to Tenn. Ct. App. R. 11 as no request for permission to appeal to the
Supreme Court was filed in that case.
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Plaintiff appeals claiming the Trial Court erred when it granted Defendant’s
motion for summary judgment.
Discussion
Our Supreme Court reiterated the standard of review in summary judgment
cases as follows:
The scope of review of a grant of summary judgment is
well established. Because our inquiry involves a question of
law, no presumption of correctness attaches to the judgment, and
our task is to review the record to determine whether the
requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49,
50-51 (Tenn. 1997); Cowden v. Sovran Bank/Cent. S., 816
S.W.2d 741, 744 (Tenn. 1991).
A summary judgment may be granted only when there is
no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v.
Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party seeking the
summary judgment has the ultimate burden of persuasion “that
there are no disputed, material facts creating a genuine issue for
trial . . . and that he is entitled to judgment as a matter of law.”
Id. at 215. If that motion is properly supported, the burden to
establish a genuine issue of material fact shifts to the
non-moving party. In order to shift the burden, the movant must
either affirmatively negate an essential element of the
nonmovant’s claim or demonstrate that the nonmoving party
cannot establish an essential element of his case. Id. at 215 n.5;
Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).
“[C]onclusory assertion[s]” are not sufficient to shift the burden
to the non-moving party. Byrd, 847 S.W.2d at 215; see also
Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our
state does not apply the federal standard for summary judgment.
The standard established in McCarley v. West Quality Food
Service, 960 S.W.2d 585, 588 (Tenn. 1998), sets out, in the
words of one authority, “a reasonable, predictable summary
judgment jurisprudence for our state.” Judy M. Cornett, The
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Legacy of Byrd v. Hall: Gossiping About Summary Judgment
in Tennessee, 69 Tenn. L. Rev. 175, 220 (2001).
Courts must view the evidence and all reasonable
inferences therefrom in the light most favorable to the
non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426
(Tenn. 1997). A grant of summary judgment is appropriate only
when the facts and the reasonable inferences from those facts
would permit a reasonable person to reach only one conclusion.
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).
In making that assessment, this Court must discard all
countervailing evidence. Byrd, 847 S.W.2d at 210-11.
Recently, this Court confirmed these principles in Hannan.
Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).
On August 17, 2009, the Tennessee Supreme Court granted permission to
appeal in Gossett v. Tractor Supply Co., No. M2007-02530-COA-R3-CV, 2009 WL 528924
(Tenn. Ct. App. Mar. 2, 2009). As noted supra at note 1, the Supreme Court recently
released its Opinion in Gossett v. Tractor Supply Co., Inc., No. M2007-02530-SC-R11-CV,
— S.W.3d —, 2010 WL 3633459 (Tenn. Sept. 20, 2010). As relevant to this appeal, in
Gossett the Supreme Court stated:
Tractor Supply next argues that summary judgment is
warranted pursuant to Collins because Mr. Gossett did not report
to an authority within or outside Tractor Supply that Mr.
Massmann had asked him to perform an illegal activity. It is
undisputed that Mr. Gossett did not report the activity, and we
therefore address only whether reporting is an essential element
of Mr. Gossett’s claim.
The elements of a common law retaliatory discharge
action can apply to many distinct factual scenarios. See Chism,
762 S.W.2d at 556. We have stated that it can arise when an
employee is discharged either for refusing to remain silent about
an illegal activity or for refusing to participate in an illegal
activity. Anderson, 857 S.W.2d at 556; see Chism, 762 S.W.2d
at 556. When an employee is discharged for refusing to remain
silent about an illegal activity, the employee must show that his
or her reporting of the illegal activity furthered a clear public
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policy. See Guy, 79 S.W.3d at 537 & n.4. Without this
showing, the claimant cannot establish the third element of the
common law retaliatory discharge action, which requires proof
of the clear public policy that the employer violated by the
discharge. See Crews, 78 S.W.3d at 862.
We have never held that an employee alleging retaliatory
discharge for refusing to participate in an illegal activity must
report the illegality to show that the employer violated a clear
public policy. Cf. Reynolds, 887 S.W.2d 822 (upholding a
verdict in favor of truckers claiming retaliatory discharge for
refusing to drive uninspected trucks in violation of federal and
state laws without considering whether the truckers reported
their employer's illegal activity). Tractor Supply asserts that
pursuant to Collins, 241 S.W.3d at 885, reporting the allegedly
illegal activity is essential to showing the third element in a case
for common law retaliatory discharge based on refusing to
participate in an illegal activity.
In Collins, the employee “alleged that she was fired
solely because she refused to go along with [her supervisor’s]
illegal instructions.” Id. at 882. The Court of Appeals affirmed
the summary judgment on the employee’s statutory and common
law retaliatory discharge claims and held that “[p]ersons
asserting either a statutory or common law whistleblowing claim
must prove” that “their employer violated a law or regulation”
and that their efforts to report “an illegal or unsafe practice
furthered an important public policy interest.” Id. at 885 (citing
Guy, 79 S.W.3d at 538 n.4). It found summary judgment proper
because the employee failed to demonstrate that her supervisor’s
request was illegal and because she “failed to present any proof
that she reported or attempted to report [her supervisor’s]
request to other bank officials or regulators.” Id. at 885-86.
Although we agree with the statement in Collins
concerning the requirements of whistleblowing claims, Collins
involved a plaintiff who refused to participate in an allegedly
illegal activity, not a plaintiff who refused to remain silent about
it. In a “whistleblowing” case, in which a failure to remain
silent is alleged, the nature of the claim asserts that silence was
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broken. The employee has no cause of action unless the
employee shows that the reporting furthered some clear public
interest. A case alleging a refusal to participate does not require
that silence be broken for a claim to exist, and reporting
therefore is not integral to the claim. For the purposes of the
common law retaliatory discharge cause of action, we decline to
hold that an employee’s refusal to violate the law never furthers
a clear public policy unless the employee reports the employer’s
attempted violation. The Court of Appeals therefore incorrectly
applied the reporting element to the employee’s action for
common law retaliatory discharge for refusing to participate in
an illegal activity.
Our decision not to add a reporting requirement will not
expand the use of the common law retaliatory discharge cause
of action or cause the retaliatory discharge exception to swallow
the employment-at-will doctrine that Tennessee courts have long
recognized. Chism, 762 S.W.2d at 555-56. Claimants alleging
common law retaliatory discharge must identify “‘an
unambiguous constitutional, statutory or regulatory provision’”
as evidence of the public policy that the employee’s discharge
violates. Guy, 79 S.W.3d at 535 (quoting Chism, 762 S.W.2d at
556); Crews, 78 S.W.3d at 862. This element sufficiently limits
the retaliatory discharge cause of action to only those cases in
which a discharge violates public policy. Chism, 762 S.W.2d at
557. Collins, for example, properly affirmed summary judgment
because the employee alleging retaliatory discharge failed to
identify an unambiguous constitutional, statutory, or regulatory
provision evincing a clear public policy that the employee
furthered by refusing to follow her supervisor's instruction. 241
S.W.3d at 885-86 & n.4.
Gossett, 2010 WL 3633459, at *9-10.
Returning to the present case, as to Plaintiff’s common law and statutory claim
that he was terminated for refusing to remain silent about illegal activities, Plaintiff readily
admitted that he never reported the alleged illegal activity to anyone other than Defendant,
who was the person engaging in the claimed illegal activity. Because Plaintiff never reported
the claimed illegal activity to anyone other than Defendant, we affirm the grant of summary
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judgment on Plaintiff’s common law and statutory claims that he was terminated for refusing
to remain silent about illegal activities.3
As set forth by the Supreme Court in Gossett, there is no reporting requirement
for common law and statutory claims of wrongful discharge based upon refusal to participate
in illegal activities. Here, the Trial Court granted Defendant summary judgment on
Plaintiff’s common law and statutory claim that he refused to participate in illegal activities.
That summary judgment grant was premised upon Plaintiff’s failing to meet a reporting
requirement. As there is no reporting requirement as to an employee’s refusal to participate
in illegal activities claim, the judgment of the Trial Court in this respect is vacated.
Even though Plaintiff need not show he reported the alleged illegal activity
when asserting a common law claim for wrongful discharge based on refusing to participate
in illegal activity, he is, nevertheless, required to “identify ‘an unambiguous constitutional,
statutory or regulatory provision’ as evidence of the public policy that the employee’s
discharge violates. Guy, 79 S.W.3d at 535 (quoting Chism, 762 S.W.2d at 556); Crews, 78
S.W.3d at 862.” Gossett, 2010 WL 3633459, at *10. When the Trial Court granted
Defendant’s motion for summary judgment, it stated that Plaintiff failed to establish that he
made efforts “to bring to light an illegal or unsafe practice [that] furthered an important
public policy interest . . . rather than simply his personal interest.” In short, the Trial Court
concluded that Plaintiff was furthering his own interest and not any public policy that was
evidenced by an unambiguous constitutional, statutory or regulatory provision. We disagree.
In his response to Defendant’s motion for summary judgment, Plaintiff claimed
Defendant violated Tenn. Code Ann. §§ 55-9-204 & 205 (addressing brake requirements for
motor vehicles and setting forth many requirements, including that all brakes be maintained
in good working order and be properly adjusted, violations of which are a Class C
misdemeanor), Tenn. Code Ann. § 55-7-101 (addressing operation of a motor vehicle that
is injurious to the road’s surface or foundation), and Tenn. Comp. R. & Regs. § 1340-6-1-.30
implemented by the Department of Safety, Division of Commercial Vehicle Enforcement,
which provides that:
3
In Gossett the Supreme Court noted that the Collins Court affirmed summary judgment on the
refusal to remain silent claim because the plaintiff failed to report her supervisor’s alleged illegal activity
to “other” bank officials or regulators. Gossett, 2010 WL 3633459, at *9. Immediately thereafter, the
Supreme Court stated that it agreed “with the statement in Collins concerning the requirements of
whistleblowing claims . . . .” Id. at *10. We take this as the Supreme Court’s approval of Collins’
requirement that when a plaintiff brings a claim premised upon a refusal to remain silent about illegal
activity, that plaintiff must establish that he made “a report to some entity other than the person or persons
who are engaging in the allegedly illegal activities.” Collins, 241 S.W.3d at 885.
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All motor vehicles shall be operated in accordance with the
requirements of the state laws and no driver or operator thereof
shall operate the same in any other than a careful and prudent
manner, nor at any greater speed than is lawful, reasonable or
proper, having due regard to the traffic and use of the way by
others, or so as to endanger the life and limb of any person, nor
shall any person operate a motor vehicle, until such operator
shall have complied in all respects with the requirements of
[Title] 59, Chapter 7, of the Tenn. Code Annotated.
The parties are in sharp disagreement over whether Defendant violated any of
the statutes or the regulation that Plaintiff alleges were violated. Based on the affidavits filed
in this case, there clearly is a genuine factual issue as to whether these statutes or the
regulation were violated. The question we must address is, assuming Plaintiff’s factual
allegations are true, which we must at this summary judgment stage of the proceedings,
whether Plaintiff’s discharge violated public policy that was evidenced by a constitutional,
statutory or regulatory provision. We conclude that the statutes and regulations Plaintiff
claims were violated establish, at a minimum, public policy that motor vehicles have properly
working brakes. The fact that a public policy is involved is made more apparent by the fact
that the General Assembly has made violations of Tenn. Code Ann. §§ 55-9-204 & 205 Class
C misdemeanors.
Taking Plaintiff’s factual allegations as true, which we must, Defendant’s
alleged statutory and regulatory violations resulted in Plaintiff driving loaded dump trucks
and trailers on public roads with significantly defective brakes. This put not only Plaintiff
at risk, but also everyone else who was using the public roads being traveled by Plaintiff
while he was driving this allegedly defective equipment. As such, we disagree with the Trial
Court’s conclusion that Plaintiff was protecting only his personal interest. Taking Plaintiff’s
factual allegations as true at this motion for summary judgment stage, we conclude that
Plaintiff sufficiently established that his discharge violated public policy as evidenced by an
unambiguous statutory or regulatory provision. The Trial Court’s judgment to the contrary
is vacated.4
4
We express no opinion on whether Defendant actually violated any statutes or regulations. That
decision will be for the trier of fact.
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Conclusion
The judgment of the Trial Court is affirmed in part and vacated in part. This
cause is remanded to the Circuit Court for Rutherford County for further proceedings
consistent with this Opinion and for collection of the costs below. Costs on appeal are taxed
to the Appellee, Anthony Adams, for which execution may issue, if necessary.
________________________________
D. MICHAEL SWINEY, JUDGE
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