IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FOR PUBLICATION
EVELENE N. STEIN, ) Filed: May 19, 1997
)
Plaintiff/Appellant ) Hon. Hamilton V. Gayden
) Judge
Vs. )
) DAVIDSON COUNTY
DAVIDSON HOTEL COMPANY, )
) Supreme Court
Defendant/Appellee. ) No. 01-S01-9610-CV-00202
)
FILED
May 19, 1997
Cecil W. Crowson
Appellate Court Clerk
FOR PLAINTIFF/APPELLANT FOR DEFENDANT/APPELLEE:
Patricia A. Montgomery John S. Hicks,
WESTLAKE & MARSDEN, P.C. Stephen H. Biller
Nashville, Tennessee Katherine A. Brown
BAKER, DONELSON, BEARMAN &
CALDWELL
Nashville, Tennessee
OPINION
TRIAL COURT AND
COURT OF APPEALS
AFFIRMED. DROWOTA, J.
The plaintiff, Evelene N. Stein, a private employee, was terminated from
her position of banquet captain at the Holiday Inn Crown Plaza which is owned by
defendant, Davidson Hotel Company, 1 a private employer, because she tested
positive on a random drug test. Stein brought suit against Davidson alleging
seven grounds for relief. Davidson filed a motion to dismiss for failure to state a
claim and the trial court granted the motion with respect to five of the seven claims
alleged by Stein. The Court of Appeals affirmed the trial court’s judgment.
We granted this appeal to determine whether Stein has stated a cause of
action for wrongful discharge. We conclude that no clear mandate of public policy
is violated when a private employer dismisses a terminable-at-will employee who
tests positive on a random drug test. Therefore, we affirm the judgment of the
Court of Appeals upholding the trial court’s dismissal of Stein’s claim for wrongful
discharge.2
BACKGROUND
Stein began working at the Holiday Inn Crowne Plaza on June 6, 1989,
when it was owned by Flautt Properties, Inc. Stein had no written contract and
was a terminable-at-will employee. In September of 1990, Flautt sold the hotel to
Davidson. Stein continued to work at the hotel after the sale. In February of
1992, Davidson instituted a drug and alcohol testing program. The program
included pre-employment testing, reasonable suspicion testing, after accident
testing, and random drug testing. Prior to instituting the program, Davidson
1
Hereina fter “Dav idson.”
2
Oral arguments were heard in this case on April 8, 1997, in Union City, Obion County, as
part of this C ourt’s S.C .A.L.E.S. ( Supreme Court Advancing Lega l Education for Students ) project.
-2-
required all employees to sign a consent and release form. According to Stein’s
allegations, any employee refusing to sign the consent and release form would
have been terminated. Stein does not contend that she refused to sign the
consent form, but she alleges that she signed the form only because of the
perceived threat of termination.
In October of 1994, Davidson advised Stein, who was employed in the
position of banquet captain, that she had been selected for a random drug test.
Stein went to Roche Biomedical Laboratories, Inc. and provided a sample for
urinalysis. Joe Dietz, Stein’s immediate supervisor, thereafter informed her that
she had tested positive for drug use, but she was not advised of the drugs
detected or any other information about the positive result. Later that day, Stein
met with other Davidson managers. She denied using illegal drugs and asked that
she be given an opportunity to refute and disprove the positive test result. Stein
wanted to employ another laboratory to test a different urine sample. Davidson
declined to approve Stein’s suggestion, but instead offered to have Roche re-test
Stein’s original urine sample. Stein refused that offer. Thereafter, Davidson
terminated Stein’s employment as a result of the positive drug test.
On January 9, 1995, Stein filed this action against Davidson. Her complaint
alleged several causes of action including: (1) wrongful discharge in violation of
public policy; (2) tortious invasion of privacy; (3) breach of an implied employment
contract; (4) breach of an implied covenant of good faith and fair dealing; (5)
negligence on the part of Davidson; (6) negligent infliction of emotional distress
and outrageous conduct; and (7) failure to pay Stein earned vacation time. On
-3-
March 7, 1995, Davidson filed a “Motion to Dismiss or for Summary Judgment.”
The trial court granted Davidson’s motion to dismiss for failure to state a claim as
to counts one, two, three, five, and six on June 9, 1995. With respect to the fourth
claim, the trial court took the matter under advisement, and with respect to count
seven, the trial court, after reviewing affidavits submitted by the parties, concluded
that there was a genuine issue of material fact and denied the motion for
summary judgment. The trial court concluded, pursuant to Rule 54.02, Tenn. R.
Civ. P., that there were no just reasons for delay, and certified that the order was
final for purposes of appeal.
Stein appealed the trial court’s dismissal of her wrongful discharge and
tortious invasion of privacy claims. The Court of Appeals affirmed the trial court’s
dismissal of both claims. Thereafter, we granted this appeal to consider whether
Stein has stated a cause of action for wrongful discharge. In resolving this
question, we must determine whether dismissal of a terminable-at-will employee
for testing positive on a random drug test violates a clear mandate of public policy.
STANDARD OF REVIEW
A Rule 12.02(6), Tenn. R. Civ. P., motion to dismiss for failure to state a
claim upon which relief can be granted tests only the legal sufficiency of the
complaint, not the strength of a plaintiff’s proof. Such a motion admits the truth of
all relevant and material averments contained in the complaint, but asserts that
such facts do not constitute a cause of action. In considering a motion to dismiss,
courts should construe the complaint liberally in favor of the plaintiff, taking all
-4-
allegations of fact as true, and deny the motion unless it appears that the plaintiff
can prove no set of facts in support of her claim that would entitle her to relief.
Cook v. Spinnakers of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). In
considering this appeal from the trial court’s grant of the defendant’s motion to
dismiss, we take all allegations of fact in the plaintiff’s complaint as true, and
review the lower courts’ legal conclusions de novo with no presumption of
correctness. Tenn. R. App. P. 13(d); Owens v. Truckstops of America, 915
S.W.2d 420, 424 (Tenn. 1996); Cook, supra.
RETALIATORY OR WRONGFUL DISCHARGE
The doctrine of employment-at-wilI is a long standing rule in this State
which recognizes the concomitant right of either the employer or the employee to
terminate the employment relationship at any time, for good cause, bad cause, or
no cause at all, without being guilty of a legal wrong. Harney v. Meadowbrook
Nursing Center, 784 S.W.2d 921, 922 (Tenn. 1990); Watson v. Cleveland Chair
Co., 789 S.W.2d 538 (Tenn. 1989). Both by statute and case law in this and other
states, however, some restrictions have been imposed upon the right of an
employer to terminate an at-will employee. In Tennessee an employee-at-will
generally may not be discharged for attempting to exercise a statutory or
constitutional right, or for any other reason which violates a clear public policy
which is evidenced by an unambiguous constitutional, statutory, or regulatory
provision. See e.g., Mason v. Seaton, ___ S.W.2d ___ (Tenn. 1997); Conatser v.
Clarksville Coca-Cola, 920 S.W.2d 646 (Tenn. 1995); Reynolds v. Ozark Motor
Lines, Inc., 887 S.W.2d 822 (Tenn. 1994); Anderson v. Standard Register Co.,
-5-
857 S.W.2d 555 (Tenn. 1993); Hodges v. S.C. Toof & Co., 833 S.W.2d 896
(Tenn. 1992); Chism v. Mid-South Milling Co., 762 S.W.2d 552 (Tenn. 1988);
Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn. 1984).
This cause of action for retaliatory or wrongful discharge, which was first
recognized by this Court in Clanton, supra, strikes the balance between the
employment-at-will doctrine and rights granted employees under well-defined
expressions of public policy. Anderson, 857 S.W.2d at 556. The employment-at-
will doctrine recognizes that employers need freedom to make their own business
judgments without interference from the courts. Mason, ___ S.W.2d at ___ “[A]n
employer’s ability to make and act upon independent assessments of an
employee’s abilities and job performance as well as business needs is essential to
the free-enterprise system.“ Clifford v. Cactus Drilling Corp., 353 N.W.2d 469,
474 (Mich. 1984). In contrast, the action for retaliatory or wrongful discharge
recognizes that, in limited circumstances, 3 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. See Chism v. Mid-South
Milling Co, 762 S.W.2d 552, 555-57 (Tenn. 1988)(citing examples). Therefore,
the tort action of retaliatory or wrongful discharge is available to employees
discharged as a consequence of an employer’s violation of a clearly expressed
public policy. Reynolds, 887 S.W.2d at 823; Hodges, 833 S.W.2d at 899.
This Court has explained its role with respect to discerning public policy as
3
To maintain this delicate balance, this Court has emphasized that the exception to the
employment-at-will doctrine must be narrowly applied and not be permitted to consume the general
rule. Chism, 762 S.W .2d at 556 .
-6-
follows:
This Court can know nothing of public policy
except from the constitution and the laws, and the
course of administration and decision. It has no
legislative powers. It cannot amend or modify any
legislative acts. It cannot examine questions as
expedient or inexpedient, or as politic or impolitic.
Considerations of that sort must, in general, be
addressed to the legislature. Questions of policy
determined there are concluded here.
There are cases, it is true, in which arguments
drawn from public policy must have large influence; but
these are cases in which the course of legislation and
administration do not leave any doubt upon the
question what public policy is, and in which what would
otherwise be obscure or of doubtful interpretation, may
be cleared and resolved by reference to what is
already received and established.
Watson, 789 S.W.2d at 540, (quoting Nashville Ry. & Light Co. v. Lawson, 144
Tenn. 78, 91, 229 S.W. 741 (1920). This Court does not engage in hypothetical
guessing to fashion public policy. Unlike other jurisdictions, 4 Tennessee courts do
not, in the context of wrongful discharge actions, attempt to discern public policy
from the common law. See e.g., Reynolds, 887 S.W.2d at 823. Therefore, to
prevail in this appeal, Stein must point to a clear mandate of public policy, 5
evidenced by an unambiguous constitutional, statutory, or regulatory provision,
which Davidson violated when it discharged her for testing positive on a random
drug test. Id.
Stein argues that Davidson’s dismissal of her contravenes her right to
4
See e.g. Hennessy v. Coastal Eagle Point Oil Co., 609 A.2d 11, 17-19 (N.J. 1992).
5
Tho ugh we ha ve ex am ined a nd st udied auth ority fro m o ther s tates , to pre vail on her c laim ,
Stein mu st po int to a clear ly defin ed T enn ess ee pu blic po licy whic h wa s viola ted b y her d ism issa l.
-7-
privacy evidenced by Article I, Sections 7 and 8 of the Tennessee Constitution. In
support of her claim, Stein also relies upon decisions6 of the United States
Supreme Court which address random drug testing of government employees,
and statutes7 from other states relating to random drug testing of private
employees. Davidson responds that constitutional provisions protect citizens from
abusive and intrusive government action but do not control relationships between
private individuals, including employer - employee relationships. Secondly,
Davidson argues that, in Tennessee, there is no well-defined public policy
evidenced by an unambiguous constitutional, statutory, or regulatory provision
which precludes employers from dismissing at-will employees who test positive for
drug usage on a random drug test.
Initially, we address Stein’s contention that the constitutional right of privacy
represents a clear public policy which prohibits a private employer from
terminating employees who test positive for drug use. It is well-settled that
constitutional guarantees restrain government conduct and generally do not
restrain the conduct of private individuals. State v. Hudson, 849 S.W.2d 309, 311
(Tenn. 1993); Freshwater v. State, 2 Tenn. Crim. App. 314, 320, 453 S.W.2d 446,
449 (1969); see also, Borse v. Peace Goods Shop, Inc., 963 F.2d 611, 620 (3d
Cir. 1992); Gilmore v. Enogex, Inc., 878 P.2d 360, 365 (Ok. 1994); Roe v. Quality
Transportation Services, 838 P.2d 128, 130 (Wash. App. Div. 3 1992); but see
Luck v. Southern Pac. Trans. Co., 267 Cal. Rptr. 618, 627 (1990) (ballot
6
See e.g. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384,
103 L.E d.2d 685 (1989); Skinner v. Railway Labor Executive’s Association, 489 U.S . 602, 109 S.Ct.
1402, 103 L.Ed.2d 639 (19 89).
7
See e.g. Conn . Gen. S tat. § 31-51 t to -51aa (1 992); Iow a Cod e Ann. § 730.5 (W est 199 3).
-8-
arguments showed that constitutional provision applied to both business and
governmental activities). Contrary to Stein’s claim, therefore, the state
constitutional guarantee of privacy is not a source of public policy which restricts
the right of private employers to discharge terminable-at-will employees who test
positive on random drug tests. The United States Supreme Court decisions upon
which Stein relies are not applicable to this appeal. Those decisions involved
random drug testing of public employees by government actors; therefore,
constitutional principles of privacy and search and seizure were implicated. Since
this appeal involves a private employer/employee relationship, those important
constitutional considerations are not at issue.
Moreover, we have not discovered a statutory or regulatory provision which
represents a well-defined public policy that is contravened by employers
discharging at-will employees who test positive for drug use on random drug tests.
There is certainly no statutory provision expressly prohibiting an employer from
discharging an employee who has tested positive on a random drug test. Unlike
some other state statutes upon which Stein relies, Tennessee has not enacted a
comprehensive statutory scheme to govern random drug testing by private
employers. As the Court of Appeals recognized, existing Tennessee statutes
which relate to random drug testing in other contexts appear to favor the practice.
The Legislature has specifically authorized drug testing for public high school
students and the security personnel employed by the Department of Corrections
and Youth Development. Tenn. Code Ann. § 49-6-4213 (1996); Tenn Code Ann.
§ 41-1-122 (1990 & Supp. 1996). Moreover, in 1995, the General Assembly
enacted a statute which provides that private sector employees who left their most
-9-
recent job “either to avoid taking a drug or alcohol screening test, or after receiving
a positive result to a drug or alcohol screening test” are not entitled to
unemployment compensation. Tenn. Code Ann. § 50-7-302(a)(9) (Supp. 1996).
Though not directly addressing random drug testing of private employees, the
most straightforward expression of public policy with respect to dismissing
employees for drug use was contained within a statute enacted on May 13, 1996,
following the release of the Court of Appeals’ decision in this case. In that statute
the General Assembly declared:
It is the intent of the General Assembly to promote drug-free
workplaces in order that employers in the state be afforded the
opportunity to maximize their levels of productivity, enhance their
competitive positions in the market place and reach their desired
levels of success without experiencing the costs, delays and
tragedies associated with work-related accidents resulting from drug
abuse by employees. It is further the intent of the General Assembly
that drug abuse be discouraged and that employees who choose to
engage in drug abuse face the risk of unemployment and the
forfeiture of workers’ compensation benefits.
Tenn. Code Ann. § 50-9-101(a) (1996 Supp.) (emphasis added). Considering this
unambiguous pronouncement and other relevant statutory provisions, we find no
well-defined public policy which is violated by a private employer discharging an
at-will employee who tests positive for drug use on a random drug test. Gilmore,
supra.
CONCLUSION
Stein has failed to identify a clear public policy, evidenced by an
unambiguous constitutional, statutory, or regulatory provision, that was violated by
her dismissal for testing positive for drug use on a random drug test. Therefore,
she has failed to allege an essential element of her claim for wrongful discharge.
-10-
Accordingly, we affirm the Court of Appeals’ judgment upholding the trial court’s
dismissal of Stein’s claim. This cause is remanded to the trial court for further
proceedings consistent with this decision.
_____________________________________
Frank F. Drowota, III
Justice
Concur:
Birch, C.J.,
Anderson, Reid, Holder, JJ.
-11-