Franklin v. Swift Transportation Co.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 22, 2006 Session

ANTHONY FRANKLIN v. SWIFT TRANSPORTATION CO., INC.

A Direct Appeal from the Circuit Court for Shelby County
No. CT-006832-02 The Honorable Kay S. Robilio, Judge

No. W2005-01062-COA-R3-CV - Filed July 12, 2006

This is a retaliatory discharge case. The former employee of a trucking company filed suit against
the trucking company for statutory and common law retaliatory discharge, alleging that his
employment was terminated due to his refusal to violate a Tennessee Department of Safety
regulation that required the truck to carry an original “cab card” showing registration. The employer
had directed the employee truck driver to deliver merchandise to a customer, assigning him a
particular truck. The original cab card for the truck could not be found, so the employer gave the
employee a photocopy of the cab card. The employee refused to drive the truck with only a
photocopy, and another truck could not be located. The next day, the employee truck driver was
fired. The truck driver sued the employer trucking company for retaliatory discharge, alleging that
his employment was discharged for refusing to participate in an illegal activity. The Shelby County
Circuit Court entered judgment on a jury verdict in favor of the employee. We reverse, finding that
the employee’s refusal to perform the assigned work based on the regulation requiring the original
cab card, as opposed to a photocopy, did not further important public policy concerns, and therefore
would not support a claim of retaliatory discharge.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed
HOLLY M. KIRBY , J., delivered the opinion of the court, in which DAVID R. FARMER , J., joined. W.
FRANK CRAWFORD , P.J., W.S., dissented.

Jeff Weintraub, J. Gregory Grisham and C. Michael Becker of Memphis, Tennessee for Appellant,
Swift Transportation, Inc.

Donald A. Donati and William B. Ryan of Memphis, Tennessee for Appellee, Anthony Franklin
 OPINION

Plaintiff/Appellee Anthony Franklin was hired by Defendant/Appellant Swift Transportation
Co., Inc. (“Swift”)1 in October 2000 as an over-the-road driver. After completing a thirty-day
training program, Franklin was assigned as a driver for a dedicated account for the Dollar Tree
stores, a chain of convenience-type retail stores. In this position, the driver delivers merchandise
regionally to store locations, many in small towns. The assignment required a highly skilled or very
experienced driver. For an account such as this, a driver in Memphis would be able to be home with
his family three to four nights a week, normally on the weekends. This would give the driver more
time at home than a “regular line haul,” for which a driver would typically be away from home three
weeks at a time. In the normal course of his employment as a dedicated Dollar Tree driver, Franklin
would receive a dispatch call, and then go to the Dollar Tree distribution facility in Olive Branch,
Mississippi to pick up a trailer loaded with merchandise to be delivered to a Dollar Tree store in the
southeast region of the United States. Generally, Franklin drove two shipments a week and grossed
between $700 and $1,000 per week.

The Dollar Tree account was a lucrative, important account for Swift. Dollar Tree had very
high “on time” requirements for its merchandise deliveries, and Swift would be penalized if its on-
time performance fell below ninety-five percent. Failure to maintain an on-time delivery schedule
would also affect Swift’s ability to keep the account. It was important for a driver on an account
such as this to pick up his trailer of merchandise by the appointed time so that he would get the
required eight-hour rest break to complete the run.

Swift at that time was a “forced dispatch” company, which meant that, once a driver was
assigned to deliver a load, he could not refuse to do so unless there was an emergency. Specifically,
dedicated drivers for Dollar Tree were not permitted to refuse to deliver a load.

On December 2, 2001, Franklin received a dispatch call and went to the Dollar Tree facility
in Olive Branch, Mississippi. There, Franklin was to pick up a trailer of merchandise and deliver
it to a Dollar Tree location in the Dallas, Texas area by the next morning. After picking up the
trailer, Franklin went to the Swift terminal in Memphis, Tennessee, to get fuel and have his truck
inspected by a maintenance employee. When he arrived, Franklin was told by the maintenance
employee that his truck needed to be taken out of service for routine maintenance that was due on
the vehicle. Franklin then contacted the weekend dispatcher, Kim Rogers (“Rogers”), to inform her
that his truck had been taken out of service. Consequently, Rogers assigned Franklin a loaner truck,
truck #16064.

Franklin located truck #16064, and performed the mandatory pre-trip inspection of the truck,
as required by Swift. The inspection included checking all paperwork in the truck, such as

1
Franklin was originally hired by M.S. Carriers. In the summer of 2001, Swift Transportation Co., Inc. acquired
M.S. Carriers. M.S. Carriers was voluntarily dismissed from this action by Order of the trial court on March 21, 2005.
The employer will be referred to herein as “Swift.”

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maintenance and registration permits kept in the truck’s permit book. The truck checked out
satisfactorily, except that truck #16064's International Registration Plan card (“IRP cab card”) was
missing. The IRP cab card is a pink-colored motor registration card issued by the State of
Tennessee, listing all of the states in which the vehicle is registered to operate.

Franklin contacted Rogers again to tell her that the original IRP cab card was missing from
truck #16064. In response, Rogers told Franklin to “run with [the truck] anyway.” Franklin told
Rogers that he did not feel comfortable driving the truck without the original IRP cab card. Rogers
told Franklin to contact the road maintenance records department to find out whether they had a
back-up original of the IRP cab card for truck #16064. Franklin contacted the road maintenance
records department and was told that they only had a black and white photocopy of the IRP cab card
for truck #16064. Franklin called Rogers and told her that the road maintenance records department
only had a photocopy of the IRP cab card. Rogers told Franklin to take truck #16064 with the
photocopy of the IRP cab card. When Franklin expressed reluctance, she assured him that driving
the truck with a photocopied cab card would not be a moving violation or a D.O.T. violation, that
it would not go on his driving record, and that if he were stopped for it and any fine was assessed,
or anything else happened as a result of only having a copy, the company would pay for it. Despite
this, Franklin refused to drive the truck without the original IRP cab card and asked Rogers to locate
another loaner truck. Rogers acquiesced, and assigned Franklin a second loaner truck.

Considerable time had passed by this point. Franklin searched for the second loaner truck,
but was unable to locate it on the Swift lot. Finally, Franklin called the dispatch office to tell them
that he could not find the second loaner truck. Franklin was then informed by the dispatch staff that
the delivery load had been taken off of him, and that he needed to contact the account manager for
the Dollar Tree account the next morning. Before leaving the Swift terminal, Franklin discovered
that the second loaner truck that he had been trying to locate on the Memphis Swift lot was actually
in Brownsville, Tennessee.

The next morning, Monday, December 3, 2001, Franklin went to the Swift offices to meet
with the account manager for the Dollar Tree account, Montel Maners. When he arrived at the
offices, Franklin learned that he had been terminated from his job. That morning, at 8:05 a.m.,
Debbie Ashley, Franklin’s immediate supervisor, made an entry into Swift’s computer system that
Franklin had been terminated for refusing a load. After learning of his termination, Franklin went
to the Swift Employee Relations department. Franklin was told to write a summary of the events
that occurred, which he did. Franklin was then told that Swift employee Jerry Stairs (“Stairs”)
needed to review the appeal letter, and that Franklin would be contacted after Stairs’ review. On
December 4, 2001, Franklin contacted Stairs to discuss his appeal. A meeting was set for December
5, 2001. At the December 5, 2001 meeting, Stairs told Franklin that he had contacted Montel
Maners, but nothing had been resolved. On December 31, 2001, Franklin received a separation
notice from Swift, stating that he had quit his employment to take another job.

On December 2, 2002, Franklin filed a lawsuit against Swift for statutory and common law
retaliatory discharge, alleging that his employment was terminated due to his refusal to violate safety

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provisions of Tennessee Motor Carriers Act. Franklin sought back pay, front pay in lieu of
reinstatement, and compensatory and punitive damages. Swift answered and asserted the affirmative
defenses that Franklin failed to state a claim upon which relief could be granted, that Franklin’s
claims were pre-empted by the Surface Transportation Assistance Act of 1982, 42 U.S.C. § 31105,
and that Franklin’s employment with Swift would have ended regardless of his refusal to drive a
truck that was allegedly not in compliance with the Tennessee Motor Carriers Act and its
implementing regulations.

On October 15, 2004, Swift filed a motion for summary judgment, arguing that Franklin
could not establish a cause of action for retaliatory discharge because Franklin’s refusal to drive
loaner truck number #16064 was a lawful reason for Swift to terminate his employment. Swift
asserted that Franklin did not have sufficient reason for refusing to take the truck because he
personally did not know of any inspectors who would not accept a photocopy of the IRP cab card,
as opposed to the original IRP cab card. On January 28, 2005, the trial court, after hearing arguments
from counsel, denied Swift’s motion for summary judgment. On February 8, 2005, the trial court
entered an order denying Swift’s motion for summary judgement; absent from the order was any
explanation of the trial court’s legal conclusions. On March 14, 2005, Swift filed a motion for the
trial court’s statement of legal grounds for its denial of Swift’s motion for summary judgment.2

The jury trial began on March 21, 2005. At the close of Franklin’s case, Swift made a motion
for directed verdict pursuant to Rule 50 of the Tennessee Rules of Civil Procedure. Swift argued that
Tennessee law did not require the original, as opposed to a copy, of the IRP cab card, and that
driving a commercial motor vehicle without an original IRP cab card did not rise to the level of clear
public policy in Tennessee relating to health, safety and public welfare. The trial court denied
Swift’s motion for directed verdict. At the conclusion of the proof, Swift renewed its motion for
directed verdict, based on the same argument. The trial court again denied Swift’s motion for
directed verdict. Following closing arguments, the jury returned a verdict in favor of Franklin, and
awarded Franklin lost wages in the amount of $51,878.00.

On April 27, 2005, Swift filed a motion for judgment notwithstanding the verdict, or in the
alternative, for a new trial. Swift argued that the trial court erred in denying its motion for summary
judgment, as well as its later motions for directed verdict, since the requirement to keep the original,
as opposed to a photocopy, of the IRP cab card in the truck cab did not constitute a clear and
unambiguous public policy of the State of Tennessee relating to safety, health, or public welfare.
For this reason, Swift argued, a termination based on a refusal to drive a truck without the original
IRP cab card did not constitute actionable retaliatory discharge or whistleblowing under the
Tennessee common law or the Tennessee Public Protection Act. On May 2, 2005, Franklin filed a
motion for an order awarding prejudgment interest, which was denied by the trial court. On May 25,

2
Swift’s brief explains that the trial court later stated that Franklin had established the existence of a clear
public policy in Tennessee that it was unlawful to operate a commercial motor vehicle without the original of the IRP
cab card in the cab. From our review of the record, however, Swift’s citation to the record for this proposition is
incorrect. This Court was unable to locate any clarification from the trial court explaining the legal bases for denying
Swift’s motion for summary judgment except for the trial court’s statement that it felt it was a “colorable claim.”

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2005, the trial court entered an order denying Swift’s motion for judgment notwithstanding the
verdict, or in the alternative, for a new trial. From these orders, Swift now appeals.

On appeal, Swift asserts that the trial court erred in (1) failing to grant Swift’s motion for
summary judgment; (2) failing to direct a verdict in Swift’s favor; and, (3) denying Swift’s motion
for judgment notwithstanding the verdict. Swift makes the same argument before this Court that it
made to the trial court, that is, that the termination of an at-will employee for refusing to operate a
commercial motor vehicle with a photocopy of the IRP cab card, as opposed to the original, does not
violate a clear and unambiguous public policy in the State of Tennessee related to health, safety, or
welfare sufficient to support a claim for retaliatory discharge under the common law or the
Tennessee Public Protection Act. In response, Franklin argues that his refusal to operate a
commercial motor vehicle without the original of the IRP cab card as required by Tennessee law was
the equivalent of refusing to participate in illegal activities, and, was therefore sufficient to establish
a claim for retaliatory discharge under the common law or the Tennessee Public Protection Act.
Franklin also raises an issue on appeal, asserting that the trial court erred in denying his motion for
prejudgment interest.

As to Swift’s assertion that the trial court erred in denying its motion for summary judgment,
that issue will not be reviewed on appeal. “A trial court's denial of a motion for summary judgment,
predicated upon the existence of a genuine issue of material fact, is not reviewable on appeal when
a judgment is subsequently rendered after a trial on the merits.” Bradford v. City of Clarksville, 885
S.W.2d 78 (Tenn. Ct. App. 1994). Therefore, the denial of Swift’s summary judgment motion is not
reviewable on appeal.

Swift asserts on appeal that the trial court erred in failing to direct a verdict in its favor, at
the close of Franklin’s proof, and, again, when Swift renewed its motion for directed verdict at the
conclusion of the proof, on the basis that the regulatory infraction by Swift was insufficient to
support Franklin’s claim of retaliatory discharge. A directed verdict under either Tenn. R. Civ. P.
50.01 or 50.02 is appropriate only when, after taking the strongest legitimate view of the evidence
favoring the opponent and drawing all reasonable inferences in favor of that opponent, reasonable
minds cannot differ as to the conclusions to be drawn from the evidence. Alexander v. Armentrout,
24 S.W.3d 267, 271 (Tenn. 2000); Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994); Ingram
v. Earthman, 993 S.W.2d 611, 627 (Tenn. Ct. App. 1998). A post-trial motion for entry of
judgment in accordance with a motion for a directed verdict made during the trial is gauged by the
same standard. Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977) (citing Vaughan v. Shelton,
514 S.W.2d 870, 874 (Tenn. Ct. App. 1974); Keller v. East Tennessee Production Credit Ass'n, 501
S.W.2d 810, 812 (Tenn. Ct. App. 1973)). Under this standard of review, we address the substantive
issue raised by Swift on appeal, namely, whether Franklin can sustain a cause of action for retaliatory
discharge for his refusal to drive Swift’s truck with a photocopy of the IRP cab card, rather than the
original cab card.

The employment-at-will doctrine is a bedrock of Tennessee common law. Under this
doctrine, employment for an indefinite term may be terminated by either the employer or the

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employee at any time, for good cause, bad cause, or no cause at all. Guy v. Mutual of Omaha Ins.
Co., 79 S.W.3d 528, 534-35 (Tenn. 2002). This traditional rule, however, is not absolute;
restrictions have been imposed on the right of the employer to discharge an employee. Id. at 535.
In Chism v. Mid-South Milling Co., 762 S.W.2d 552, 556 (Tenn. 1988), the Tennessee Supreme
Court indicated its willingness to recognize a claim for retaliatory discharge where the employee is
discharged in contravention of public policy. See also Guy, 79 S.W.3d at 535; Clanton v. Cain-
Sloan Co., 677 S.W.2d 441 (Tenn. 1984). In Chism, the plaintiff alleged that he was discharged
because he insisted that his employer comply with the Internal Revenue Code. Chism, 762 S.W.2d
at 554. The Chism court discussed the parameters of a cause of action for retaliatory discharge:

It is obvious that the exception cannot be permitted to consume or eliminate the
general rule. . . . To be liable for retaliatory discharge in cases such as this, the
employer must violate a clear public policy. Usually this policy will be evidenced
by an unambiguous constitutional, statutory or regulatory provision.

Id. at 556. The Chism court went on to recite “[e]xamples of clearly defined public policies which
warrant the protection provided by this cause of action. . . .” Id. These examples included cases in
which the employee was discharged for refusing to commit perjury, for insisting on obeying a lawful
subpoena, for refusing to seek to be excused from jury duty, for refusing to falsely certify the
required testing of consumer products, and for reporting consumer fraud violations. Id. (citations
omitted). The Chism court commented: “In each of these cases . . . very specific statutory violations
were charged, and usually the employee’s personal exposure to civil or criminal sanctions was
emphasized.” Id. The court found the plaintiff’s allegations in his complaint insufficient to support
a claim of retaliatory discharge, stating: “In order to state a claim for relief for this very exceptional
tort action, the pleader must show clear violation of some well-defined and established public
policy.” Id.

Two years after the decision in Chism, the Tennessee legislature codified the common-law
cause of action for retaliatory discharge by enacting the Tennessee Public Protection Act, which
currently provides:

(a) No employee shall be discharged or terminated solely for refusing to participate
in, or for refusing to remain silent about, illegal activities.
***
(c) As used in this section, “illegal activities” means activities that are in violation
of the criminal or civil code of this state or the United States or any regulation
intended to protect the public health, safety or welfare.
(d)(1) Any employee terminated in violation of Subsection (a) shall have a cause of
action against the employer for retaliatory discharge and any other damages to which
the employee may be entitled.

Tenn. Code Ann. § 50-1-304(a), (c) and (d)(1) (2005). By enacting the Public Protection Act, the
legislature recognized the importance of encouraging employees to report violations “of those laws

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and regulations ‘intended to protect the public health, safety or welfare.’ ” Guy, 79 S.W.3d at 537.
In Guy, the court held that the Public Protection Act “is cumulative to, and does not preempt, the
common law tort remedy for retaliatory discharge claims where the employee was discharged for
reporting illegal or unethical conduct.” Id.

In this case, Franklin asserts a claim for retaliatory discharge under both the common law and
the Tennessee Public Protection Act. To prevail under the Public Protection Act, the plaintiff must
establish (1) his status as an employee of the defendant employer; (2) his refusal to participate in,
or remain silent about, “illegal activities” as defined under the Act; (3) his termination; and (4) an
exclusive causal relationship between his refusal to participate in or remain silent about illegal
activities and his termination. T.C.A. § 50-1-304. The elements required in order to prove a
common law retaliatory discharge claim are similar; the plaintiff must show (1) that an employment-
at-will relationship existed; (2) that he was discharged; (3) that the reason for his discharge was that
he attempted to exercise a statutory or constitutional right, or for any other reason which violates a
clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision;
and (4) that a substantial factor in the employer’s decision to discharge him was his exercise of
protected rights or his compliance with clear public policy. Crews v. Buckman Laboratories Int'l,
Inc., 78 S.W.3d at 862; see also Guy, 79 S.W.3d at 535; Mason v. Seaton, 942 S.W.2d 470, 474
(Tenn. 1997); Stein v. Davidson Hotel Co., 945 S.W.2d 714, 717 (Tenn. 1997); Hodges v. S.C. Toof
& Co., 833 S.W.2d 896, 899 (Tenn. 1992); Chism, 762 S.W.2d at 556.

On appeal, it is undisputed that Franklin was an employee of Swift and that he was
discharged. The jury found a causal relationship between his discharge and his refusal to drive the
loaner truck because it had a photocopy of the IRP cab card instead of the original, and Swift does
not assert on appeal that there was insufficient evidence to support this finding.

This appeal turns, then, on the final element, similar under the common law and the Public
Protection Act. Under the Public Protection Act, it must be found that the violation by the employer
constitutes an “illegal activity,” defined as “activities that are in violation of the criminal or civil
code of this state or the United States or [a] regulation intended to protect the public health, safety
or welfare.” T. C. A. § 51-1-304(c). Under the common law, the motivating factor for the discharge
must be the employee’s compliance with “a clear public policy evidenced by an unambiguous
constitutional, statutory, or regulatory provision.” Crews, 78 S.W.3d at 862. The issue becomes
whether Swift’s regulatory violation rises to this level.

A commercial vehicle such as the Swift truck at issue in this case must be licensed and
registered to operate in the State of Tennessee. Under Tennessee Code Annotated § 55-4-101(a)(2),
the registration and fees are a privilege tax which must be paid in order to operate in Tennessee.
Other states and jurisdictions require registration as well, which becomes a practical problem for
commercial vehicles operating in interstate commerce, because such vehicles would have to register
in numerous jurisdictions. Consequently, states of the United States and some provinces in Canada
adopted the International Registration Plan (“IRP”), a registration reciprocity agreement under which
the registration fees for an individual vehicle are allocated among the jurisdictions in which the

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vehicle operates. Under the IRP, the vehicle is issued one license plate and one registration, called
an IRP cab card, which shows that the vehicle is properly registered to operate in multiple
jurisdictions.

In this case, there is no allegation that the truck at issue did not meet proper safety standards,
that the required fees had not been paid, or that the vehicle was not properly registered. At issue is
the proof of such registration that was to be carried in the vehicle.

Tennessee Code Annotated § 55-4-108(a) states that a certificate of registration must be
carried in the vehicle, available to show to an employee of the Tennessee Department of
Transportation. Under this statute, the owner of the vehicle is permitted to keep in the vehicle either
the original certificate of registration or a copy of it. T.C.A. § 55-4-108(a) (1998).

The requirement for proof of registration is narrowed, however, by a regulation issued by the
Tennessee Department of Safety. The regulation states that the required proof of registration under
the IRP is “a Cab Card and Certificate of Registration for each vehicle so proportionally registered.”
Tenn. Dept. of Safety, Rule 1340-5-2-.01. The regulations address the proof of registration to be
carried in the vehicle: “1340-5-2-.02 Placement of Card. For a vehicle proportionally registered,
it is required that the original of the Cab Card be in the cab of the vehicle during its operation.”
Thus, while the statute appears to allow a copy of the proof of registration, the regulation requires
that the original IRP cab card be kept in the vehicle. This requirement is noted on the face of the
pink-colored cab card.

In this case, when Franklin inspected truck #16064 and discovered that the IRP cab card was
missing, he was given a black-and-white photocopy of the card and directed to make the Dollar Tree
run with the photocopied cab card. When Franklin expressed misgivings about this, he was assured
that operating the vehicle with a photocopy of the card was not a moving violation or a D.O.T.
violation, that it would not go on his driving record, and that if he were stopped because of the
photocopied card, Swift would pay any fine assessed. Nevertheless, Franklin refused and asked for
another truck. After trying to locate yet another truck, Swift finally took Franklin off of the
assignment.

Swift notes that this infraction, carrying a photocopy of the IRP cab card instead of the
original cab card, is not a “violation of the criminal or civil code” of Tennessee. See T.C.A. § 50-1-
304(c) (definition of “illegal activities”). Rather, it is a violation of a regulation which Swift
contends does not implicate “the public health, safety or welfare” under the Public Protection act and
does not rise to the level of a clear public policy evidenced by an unambiguous regulatory provision.
Id.; see Guy, 79 S.W.3d at 535. Therefore, it cannot support either a statutory or common law claim
of retaliatory discharge.

In response, Franklin argues that, pursuant to the Tennessee Supreme Court case of Mason
v. Seaton, 942 S.W.2d. 470,472 (Tenn. 1997), an employee can satisfy the second element of a claim
under the Tennessee Public Protection Act (the requirement of proving his refusal to participate in,

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or remain silent about, illegal activities) by showing that he had “reasonable cause to believe a law,
regulation, or rule has been violated or will be violated.” Id. Franklin maintains that he reasonably
believed that he needed to carry the original IRP cab card when operating his truck, and that his
belief was justified. At trial, Franklin recounted an occasion on which he was detained at a weigh
station in Kansas because he could not produce the original IRP cab card. Franklin contacted the
head of Swift’s permit department, Dora Griffin, who faxed a copy of the IRP cab card to the Kansas
inspector. The faxed copy was accepted and Franklin was allowed to proceed with his load. After
that incident, Griffin stressed to Franklin that the original cab card should remain in the truck,
because the Kansas officers did not have to accept a copy, and that he could be subjected to fines and
penalties for failing to have it. Griffin, who had been the head of Swift’s permit department for over
ten years, testified at trial that it was not “legal to run in any state without a cab card. . . . The law
on the registration, it says you must have the original in the permit book on the truck because copies
were not legal.” Franklin notes as well that the face of the IRP cab card contains language requiring
that the original IRP cab card be maintained in the cab during operation. Franklin asserts that his
belief that he would be breaking the law, subjecting himself to fines, penalties, and possible delay
if he operated truck # 16064 without the original IRP cab card, is sufficient to satisfy the
requirements under the Public Protection Act.

As to Franklin’s claim for common law retaliatory discharge, Franklin acknowledges that,
to be cognizable, a claim of common law retaliatory discharge must evidence a violation of “a clear
public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision. . . .”
Mason, 942 S.W.2d at 475 (citing Reynolds, 887 S.W.2d at 823). On appeal, Franklin does not
argue that Tenn. Comp. R. & Regs. 1340-5-2-.02, which requires the original cab card, is a clear
expression of Tennessee public policy; rather, the clear and unambiguous public policy that Franklin
asserts is the right of a Tennessee employee to be able to refuse to participate in an illegal activity
in the workplace. In support of this argument, Franklin cites Watson v. Cleveland Chair Company,
in which the Tennessee Supreme Court stated “that a cause of action for retaliatory discharge arises
when an at-will employee is terminated solely for refusing to participate, continue to participate, or
remain silent about illegal activities.” Watson v. Cleveland Chair Co., 789 S.W.2d 538, 544 (Tenn.
1989).

Franklin is, of course, correct in his assertion that the law of retaliatory discharge stems from
Tennessee public policy that an employee should not be placed in the moral, ethical and legal
dilemma of being forced to choose between reporting or participating in illegal activities and keeping
his job. See Henderson v. Corrs. Corp. of America, 918 F.Supp. 204, 210 (E.D. Tenn. 1996);
Griggs v. Coca-Cola Employees' Credit Union, 909 F.Supp. 1059, 1064 (E.D. Tenn. 1995). That
does not, however, end the inquiry. Under both the Public Protection Act and the common law, the
“illegal activity” or violation by the employer must implicate important public policy concerns as
well.

As noted above, the earliest Tennessee cases recognizing retaliatory discharge have
emphasized that it is an important, but narrow, exception to the employment-at-will doctrine. See
Chism, 762 S.W.2d at 556. More recent cases have underscored the qualified nature of the cause

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of action, noting that retaliatory discharge is applicable only “in limited circumstances, [where]
certain well-defined, unambiguous principles of public policy confer upon employees implicit rights
which must not be circumscribed or chilled by the potential of termination. Stein v. Davidson
Hotel, 945 S.W.2d 714, 717 (Tenn. 1997).

In Guy v. Mutual of Omaha Insurance Company, the court discussed at length the
requirement that the discharged employee demonstrate that his actions implicated important public
policy concerns.3 The plaintiff in Guy alleged that he was discharged because he reported to
authorities the fraudulent actions of an insurance agent who had misappropriated the funds of a
client. Guy, 79 S.W.3d at 531-33. He relied on Tennessee insurance statutes “as evidence of a clear
expression of the public policy in this state with respect to protecting the public from the fraudulent
activity of insurance agents.” Id. at 537. Under the heading “The Public Policy Interest of
Protecting Consumers From Insurance Fraud,” the court in Guy framed the issue as “whether the
plaintiff has asserted a ‘well defined and established’ public policy as the basis for his retaliatory
discharge claim.” Id. at 537. It observed that, under both the Act and the common law, the plaintiff
must prove that his actions “ ‘serve[] a public purpose [that] should be protected. So long as the
employees’ actions . . . seek to further the public good, the decision to expose illegal or unsafe
practices should be encouraged.’ ” Id. at 537 n.4. The Guy court emphasized that it was not enough
for the plaintiff to simply show that the employer violated a law or regulation, stating, “Our inquiry
. . . is not limited to whether a particular law or regulation has been violated; rather, our inquiry
focuses on whether some ‘important public policy interest embodied in the law has been furthered
by the whistleblowing activity.’ ” Id. at 538 (emphasis added) (quoting Gutierrez v. Sundancer
Indian Jewelry, 868 P.2d 1266, 1273 (N.M. 1993)). The Guy Court recognized the public policy
interest embodied in encouraging the reporting of the insurance agent’s fraudulent actions, quoting
an early case which recounted “painful cases . . . where . . . people have given up their scanty
earnings . . . because of unauthorized misrepresentations by unscrupulous agents. . . .” Id. (quoting
Independent Life Ins. Co. v. Rodgers, 55 S.W.2d 767, 770 (Tenn. 1933)).

Likewise, other appellate decisions on retaliatory discharge in this State have involved
activities which implicated an important public policy interest. See, e.g., Mason v. Seaton, 942
S.W.2d 470, 472 (Tenn. 1997) (plaintiff discharged for reporting hotel’s fire code violations and
dangerous working conditions); Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822 (Tenn. 1994)
(plaintiff discharged because he refused to violate regulation which requires that the driver of a
commercial motor vehicle inspect the vehicle and be satisfied that the vehicle is in safe operating
condition before it is operated on a public road); Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d
852, 865 (Tenn. 2002) (plaintiff discharged for reporting in-house counsel practicing law without
being properly licensed; court found “the existence of a clear public policy evidenced by the ethical
duty [under the Tennessee Code of Professional Responsibility] not to aid in the unauthorized
practice of law.”).

3
The plaintiff in Guy did not assert a claim under the Public Protection Act, only under the common law. 79
S.W .3d at 535-36.

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 In this case, Franklin acknowledged at trial that he was aware that the Dollar Tree account,
for which he was a dedicated driver, was important to Swift, and involved time-sensitive deliveries
requiring highly-skilled drivers. It is undisputed that the employer at that time had a “forced
dispatch” policy under which a driver assigned a load was not permitted to refuse to do so unless it
was an emergency, and that in particular, dedicated drivers for the Dollar Tree account could not
refuse to deliver a load. Franklin was assured that driving the truck with a photocopy of the IRP cab
card would not be a moving violation or a D.O.T. violation, that it would not go on his driving
record, and that if he were stopped, Swift would pay any fines assessed. Despite all of this, when
Swift could not readily locate the original IRP cab card and gave Franklin a photocopy of the card
to put in the cab of the truck, Franklin refused to use the truck to deliver the Dollar Tree
merchandise.

Under the reasoning urged by Franklin, any regulatory infraction by an employer, no matter
how minor, can justify an employee’s refusal to perform his assigned duties. Indeed, it is hard to
imagine a more de minimus regulatory violation than the infraction on which Franklin bases his
claim of retaliatory discharge in this case, namely, having a photocopied cab card instead of the
original. The Court in Guy v. Mutual of Omaha stated clearly that we do not simply look at whether
a law or regulation has been violated, but “rather, our inquiry focuses on whether some important
public policy interest embodied in the law has been furthered” by the employee’s actions. 79 S.W.3d
at 538.

Finding that any regulatory infraction by an employer, no matter how minor, can support a
claim of retaliatory discharge would be a clear extension of the law, well beyond the boundaries of
any prior Tennessee decision. Such an extension of the law has been rejected by at least one other
state. In a similar case, DeSoto v. Yellow Freight Systems, Inc., 957 F.2d 655 (9th Cir. 1992), a
plaintiff truck driver mistakenly thought that he could not operate his employer’s truck legally
because it had expired registration papers and an expired vehicle tag. The employer assured the
plaintiff that it would accept responsibility for the consequences of any lack of registration. Despite
this, the truck driver refused to use the vehicle to deliver a load, so the employer discharged him.
The truck driver then sued for wrongful discharge. Id. at 656.

The DeSoto Court found that, under these facts, the truck driver could not make out a claim
for retaliatory discharge. It determined, inter alia,4 that “no fundamental public policy concern was
involved. . . .” Id. at 659. The DeSoto Court explained its reasoning:

4
The DeSoto Court stated,

W e emphasize that this is not a case of “whistleblowing;”’ rather, it is a flat-out refusal to work and
therefore we view it differently. . . . W e have instead a claim by an employee who refuses to work
based on his erroneous belief that what he was asked to do was a violation of California law.

957 F.2d at 658 (citations omitted).

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 The act DeSoto thought was illegal, operating a trailer without registration papers,
does not implicate fundamental public policy concerns, such as health, safety, or
crime prevention, for which wrongful discharge actions have been recognized to date
in California. DeSoto was not asked to perform an act hazardous to his health or
safety. Instead, we view the failure to carry registration papers simply as one of the
“[m]any statutes [that] impose requirements whose fulfillment does not implicate
fundamental public policy concerns.”

Id. at 658-59 (citations omitted). As in DeSoto, in this case, operating a commercial vehicle with
a photocopied cab card does not implicate “important public policy” concerns for which retaliatory
discharge actions have heretofore been recognized in Tennessee. See Guy, 79 S.W.2d at 538.
Franklin was “not asked to perform an act hazardous to his health or safety.” DeSoto, 957 F.2d at
659. Much like the perceived infraction in DeSoto, Tenn. Comp. R. & Regs. 1340-5-2-.02, requiring
a commercial vehicle to carry the original cab card as opposed to a photocopy, can only be
characterized as one of the many regulations that impose “requirements whose fulfillment does not
implicate fundamental public policy concerns.” Id. (quoting Foley v. Interactive Data Corp., 765
P.2d 373, 379 (Cal. 1988)).

Therefore, we must conclude that under both the Tennessee Public Protection Act and the
common law, the regulatory infraction by Swift on which Franklin relies does not implicate
“fundamental public policy concerns” and Franklin’s refusal to drive the truck with a photocopy of
the cab card did not serve to further an important public policy interest embodied in the law. See
DeSoto, 957 F.2d at 659; Guy, 79 S.W.3d at 538. Consequently, his claim for retaliatory discharge
must fail, and the trial court’s judgment in favor of Franklin must be reversed.

This holding pretermits all other issues raised on appeal.

The decision of the trial court is reversed and the claim of Plaintiff/Appellee Anthony
Franklin is dismissed. Costs on appeal are assessed against Plaintiff/Appellee Anthony Franklin, for
which execution may issue, if necessary.

__________________________________________
HOLLY M. KIRBY, J.

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