Wendy Sterling Weinert v. City of Sevierville, Tennessee

01/23/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 16, 2018 Session

WENDY STERLING WEINERT ET AL. v. CITY OF SEVIERVILLE,
TENNESSEE

Appeal from the Chancery Court for Sevier County
No. 16-2-041 Telford E. Forgety, Jr., Chancellor

No. E2018-00479-COA-R3-CV

Wendy Sterling Weinert, a former City of Sevierville police officer, brought this
retaliatory discharge action against her former employer pursuant to the Tennessee Public
Protection Act (TPPA), Tenn. Code Ann. § 50-1-304 (Supp. 2018). She alleged that she
was discharged solely because of her whistleblowing activities of reporting an alleged
incident of excessive force and alleged sexual harassment by other officers. The trial
court granted summary judgment, holding that plaintiff could not establish that her
termination was solely caused because of her whistleblowing activities, as required by the
TPPA. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Patrick L. Looper, Knoxville, Tennessee, for the appellants, Wendy Sterling Weinert and
Matthew Walter Weinert.

Reid A. Spaulding and Dan R. Pilkington, Knoxville, Tennessee, for the appellee, City of
Sevierville, Tennessee.

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 OPINION

I.

Plaintiff was hired as a patrol officer in mid-2008. She became a field training
officer in September of 2013. She unsuccessfully applied for a promotion to the rank of
Sergeant in 2014. Defendant awarded the promotion to plaintiff’s fellow patrol officer,
Rebecca Cowan. Subsequently, on September 24, 2014, plaintiff reported to Captain
Matthew Ayers that she had been sexually harassed by two other officers. Capt. Ayers
forwarded the information to Chief of Police Don Myers, and the City opened an
investigation. Capt. Ayers testified that he believed the accused officers were not
disciplined because of a lack of corroborating proof uncovered by the investigation. In
November of 2014, plaintiff filed a complaint against defendant with the Equal
Employment Opportunity Commission alleging sexual discrimination. The EEOC
eventually dismissed the complaint, finding that it “is unable to conclude that the
information obtained establishes violations of the statutes.”

Shortly after plaintiff reported her harassment allegations to Capt. Ayers, she
reported an incident to him that she had witnessed, which she alleged involved excessive
force against an arrestee by two fellow police officers. In her deposition, plaintiff
admitted that she did not report the incident until approximately eighteen months after it
occurred. Capt. Ayers testified that he investigated plaintiff’s allegation by pulling the
arrest report, booking sheet, and use of force report. He also reviewed a videotape of the
incident. From this investigation, Capt. Ayers concluded that “there was no basis for her
complaint that there was excessive force used.”

In June of 2014, plaintiff requested a shift change, which defendant granted. This
resulted in her being under the supervision of Sgt. Cowan and Lt. David Finchum. Sgt.
Cowan testified that she became aware of several incidents and complaints regarding
plaintiff’s work performance that caused her concern. These included issues of plaintiff
avoiding dispatch calls, not backing up fellow officers, and handling calls and citizen
interactions in an unsafe manner. The record contains a “disciplinary/counseling report”
filed by Sgt. Cowan on June 13, 2015, documenting “safety violation[s]” and “policy
violation[s]” and indicating that plaintiff received coaching and a “verbal warning.”

Plaintiff returned to Capt. Ayers on June 29, 2015. She testified that at that
meeting, “it was me telling him that I felt there was a witch hunt out for me.” In essence,
plaintiff took the position that Sgt. Cowan was unfairly singling her out for unwarranted
disciplinary measures. That same day, Capt. Ayers called in Lt. Finchum and Sgt.
Cowan to his office to discuss plaintiff’s complaints. Sgt. Cowan expressed surprise and
informed Capt. Ayers of plaintiff’s job performance issues. Shortly thereafter, Sgt.
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Cowan provided the captain with the documentation memorializing plaintiff’s
employment performance violations.

On July 1, 2015, plaintiff, Lt. Finchum, and Sgt. Cowan again met in Capt. Ayers’
office. According to plaintiff’s deposition testimony, the following happened:

Captain Ayers had some papers on his desk turned upside
down and he kept ‒ he had his hands on. And then he said
something like do you have anything to add to what you said
to me the other day, da, da, da. And I said no, I have nothing
to add. And he said well, . . . I have a list here of things that
concern me about you that Sergeant Cowan has provided,
you’re not the officer that I thought you were at all. And then
he and Sergeant Cowan start to go in on a slew of things they
say that I had done.

* * *

And then [Capt. Ayers] was saying a lot. I can’t quite
remember. He and Sergeant Cowan were speaking over each
other. And then he referenced something and I said I don’t
know what you’re talking about. I kept asking to see these
papers. And he wouldn’t let me see them. I said can I please
look at those so I know what you’re talking about. And he
wouldn’t give them to me. And then Sergeant Cowan
mentioned a specific incident that I didn’t recall her
mentioning. And she was very excited and she said so are
you calling me a liar? And I said no, I’m not calling you a
liar.

Q: Did she yell?

A: She raised her voice, yes. She was very high strung. And
I said no, I’m not calling you a liar. I believe that you think
that you told me that. But you didn’t. And that’s when she
said I’ll take a lie detector test right now. And she was
yelling at that point. And I said I’ll take a lie detector test.
And that’s when Captain Ayers slammed his hands down on
his desk and stood up and yelled stop or no or something to
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 that effect. And then he leaned over his desk at me with his
lips drawn down and spittle coming from his face and he said
I’ll not be manipulated by you, I’ll not be. You come in here
crying witch hunt, witch hunt, this, that, na, na. Get out of
my office.

Plaintiff, Lt. Finchum, and Sgt. Cowan left the office and went down the hall to
the library, where plaintiff orally tendered her resignation. She testified:

A: That’s when I said ‒ I said I’m not doing this, I can’t do
this anymore, I can’t do this anymore. And Finchum said
what do you mean? And I said I’m going to give my two-
week notice. And I guess he then went and told Ayers,
because within minutes we were called back into Ayers’
office.

* * *

Q: And what happened in that meeting?

A: Captain Ayers said I understand you want to give your two
weeks notice. And Finchum said you need to think about
this. And I said I thought about this, this is a toxic
environment. And Cowan said Wendy, this is a clean slate,
clean slate, there’s nothing in your file. As soon as we walk
out this door, this never happened. And I turned to her very
calmly and I said that would mean something to me if I
trusted you, but I don’t.

According to plaintiff, “then Captain Ayers said well, I cannot accept resignation from
you unless it is in written form.” This statement is in dispute; several other officers
testified that the news of plaintiff’s oral resignation was relayed to Chief Myers, who
instructed Capt. Ayers to accept it. Plaintiff asked for the rest of the day off, and was told
she would have to have a doctor’s note.

Plaintiff got the note from her doctor and then returned to the police station. By
this time, she had talked with her attorney and changed her mind about resigning. On the
afternoon of the same day, plaintiff went to Kristi Inman, defendant’s human resources
manager. According to plaintiff, the following discussion occurred:
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 [Ms. Inman] said I have your resignation letter right here.
And I said well, that’s funny because I never wrote a
resignation letter. I said I’m not resigning. And again she
was confused. And she said well, it’s going to take me a
while to get your personnel file together, I’ll call you when I
have it. And I said okay. And I left. And about ‒ it was
between one and two that afternoon, she called. And she said
I understand you wish to rescind your verbal resignation.

And I said I was told I had to give a written resignation. And
she said no. And I said that’s what I was told. And she said
no, the chief has decided to accept your verbal resignation.
And I said Kristi, I spoke to my attorney and if you no longer
want me employed there then you have to fire me. And she
said like I said, the chief has decided to accept your verbal
resignation, you are not being required to work out your two
weeks and we’ll send somebody to get your vehicle.

Plaintiff subsequently applied to the Tennessee Department of Labor and
Workforce Development for unemployment benefits. The Department denied her
application based on its finding that plaintiff “voluntarily resigned her position after
receiving a disciplinary warning from her supervisor.” She appealed the decision, and it
was affirmed after a telephonic hearing took place.

Plaintiff filed her complaint alleging retaliatory discharge under the TTPA, Tenn.
Code Ann. § 50-1-304. Following discovery including at least eight depositions,
defendant moved for summary judgment. At the hearing, the trial court granted the
motion, stating, in pertinent part, as follows:

[T]he question then becomes, has the plaintiff shown enough
to show that the termination was pretextual? And the answer
to that is, in the court’s opinion, no, they have not. This is a
very high burden, you know, to show that the sole reason for
the termination was in response to the report of the sexual
discrimination and the excessive force, and that these job
performance issues were pretextual in nature, and that burden
being upon the plaintiff. And I cannot hold that the plaintiff
has met that burden.

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 Now, if it were the situation where ‒ if it were the situation
that the plaintiff only had to show that the discrimination was
a substantial factor, this case might be otherwise, might be
otherwise, at least at the summary judgment stage. But here it
is, I mean, it is a very high burden. And I just cannot see that
the plaintiff has met that burden to show that those job
performance issues were pretextual, and therefore, has not
met, has not carried the burden of showing that the
discrimination, even assuming that it existed, was the sole
reason for the termination.

Plaintiff timely filed a notice of appeal.

II.

Plaintiff raises the following issues:

1. Whether the trial court correctly granted summary judgment to defendant.

2. Whether defendant should be judicially estopped from claiming that plaintiff’s
employment was terminated for non-discriminatory reasons because defendant has taken
the position that she voluntarily resigned.

III.

Our standard of review of a grant of summary judgment is as stated by the
Supreme Court:

Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Tenn. R.
Civ. P. 56.04. We review a trial court’s ruling on a motion
for summary judgment de novo, without a presumption of
correctness.

* * *

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 [I]n Tennessee, as in the federal system, when the moving
party does not bear the burden of proof at trial, the moving
party may satisfy its burden of production either (1) by
affirmatively negating an essential element of the nonmoving
party’s claim or (2) by demonstrating that the nonmoving
party’s evidence at the summary judgment stage is
insufficient to establish the nonmoving party’s claim or
defense. . . . The nonmoving party must demonstrate the
existence of specific facts in the record which could lead a
rational trier of fact to find in favor of the nonmoving party.

Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015) (italics in original).

In making the determination of whether summary judgment was correctly granted,

[w]e must view all of the evidence in the light most favorable
to the nonmoving party and resolve all factual inferences in
the nonmoving party’s favor. Martin v. Norfolk S. Ry. Co.,
271 S.W.3d 76, 84 (Tenn. 2008); Luther v. Compton, 5
S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd.
of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed
facts support only one conclusion, then the court’s summary
judgment will be upheld because the moving party was
entitled to judgment as a matter of law. See White v.
Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v.
Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

Wells Fargo Bank, N.A. v. Lockett, No. E2013-02186-COA-R3-CV, 2014 WL 1673745
at *2 (Tenn. Ct. App., filed Apr. 24, 2014).

IV.

In Tennessee, the general rule governing employment relationships that do not
involve a contract for a definite term is the long-established employment-at-will doctrine.
Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534-35 (Tenn. 2002); Sykes v.
Chattanooga Housing Auth., 343 S.W.3d 18, 26 (Tenn. 2011). This doctrine
“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.” Haynes v. Formac Stables, Inc., 463 S.W.3d 34,
36 (Tenn. 2015); Coleman v. Humane Soc. of Memphis, No. W2012-02687-COA-R9-
-7-
CV, 2014 WL 587010 at *17 (Tenn. Ct. App., filed Feb. 14, 2014). “The employment-
at-will doctrine is a bedrock of Tennessee common law,” Franklin v. Swift Transp. Co.,
210 S.W.3d 521, 527 (Tenn. Ct. App. 2006), which “recognizes that employers need the
freedom to make their own business judgments without interference from the courts.”
Moore-Pennoyer v. State, 515 S.W.3d 271, 278 (Tenn. 2017) (quoting Williams v. City
of Burns, 465 S.W.3d 96, 108 (Tenn. 2015)).

The rule is not absolute, however; the Supreme Court and the General Assembly
have recognized certain restrictions on the right of an employer to discharge an
employee. Id. at 108-09. In Chism v. Mid-South Milling Co., 762 S.W.2d 552 (Tenn.
1988), superseded by statute on other grounds, see Yardley v. Hosp. Housekeeping Sys.,
LLC, 470 S.W.3d 800, 804 (Tenn. 2015), the High Court, discussing the tort of
retaliatory discharge, stated the following:

Both by statute and case law in this and other states some
restrictions have been imposed upon the right of an employer
to terminate an employee, usually for reasons of well-defined
public policy. For example, . . . [t]here are restrictions upon
employment or termination of persons for discriminatory
reasons involving race, creed, color, sex, age, religion or
national origin. See T.C.A. ' 4-21-401(a).

* * *

It is obvious that the exception cannot be permitted to
consume or eliminate the general rule. Corporate
management, in cases such as this, must be allowed a great
deal of discretion in the employing or discharging of
corporate officers, where the latter are not employed for a
definite term and have no formal contract of employment.
Whittaker v. Care-More, Inc., 621 S.W.2d 395, 397 (Tenn.
App. 1981). 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.

762 S.W.2d at 555, 556; see also Williams, 465 S.W.3d at 109 (“Retaliatory discharge is
an important, but narrow, exception to the employment-at-will doctrine applicable only in
limited circumstances.”) (internal quotation marks omitted).
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 As the Supreme Court recognized in Williams,

In addition to recognizing a common-law claim of retaliatory
discharge, all fifty states have enacted legislation designed to
encourage the reporting of wrongdoing by deterring
retaliation against “whistleblowers,” generally defined as
“organization members . . . who disclose illegal, immoral, or
illegitimate practices (including omissions) under the control
of their employers, to persons or organizations who may be
able to effect action.”

Id. (footnote omitted; ellipsis in original). The “common-law cause of action is only
available to private-sector employees, whereas the TPPA also extends protection to
public employees.” Sweat v. City of McMinnville, No. 2017-01141-COA-R3-CV, 2018
WL 1448740, at *3 (Tenn. Ct. app., filed Mar. 3, 2018).

Because plaintiff was a public employee, she is proceeding only under
Tennessee’s whistleblower legislation, Tenn. Code Ann. § 50-1-304, which provides in
pertinent part as follows:

(b) No employee shall be discharged or terminated solely for
refusing to participate in, or for refusing to remain silent
about, illegal activities.

* * *

(c)(1) Any employee terminated in violation of subsection (b)
shall have a cause of action against the employer for
retaliatory discharge and any other damages to which the
employee may be entitled.

The term “illegal activities” is defined at Tenn. Code Ann. § 50-1-304(a)(3) as “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.”

Tennessee courts have emphasized that the retaliatory discharge “exception to the
employment-at-will doctrine must be narrowly applied.” Stein v. Davidson Hotel Co.,
945 S.W.2d 714, 717 n.3 (Tenn. 1997); Chism, 762 S.W.2d at 556; Sykes, 343 S.W.3d at
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26 (describing the Whistleblower Act as a “narrowly crafted exception”); Williams, 465
S.W.3d at 109; Jones v. City of Union City, No. 2013-02358-COA-R3-CV, 2015 WL
9257815, at *6 (Tenn. Ct. App., filed Dec. 17, 2015) (“The Tennessee General Assembly
enacted ‘a stringent standard and set the bar high for recovery’ for a retaliatory discharge
claim pursuant to the TPPA.”) (quoting Williams, 465 at 110).

The elements of a statutory retaliatory discharge action are as follows:

(1) the plaintiff was an employee of the defendant;

(2) the plaintiff refused to participate in or remain silent about
illegal activity;

(3) the defendant employer discharged or terminated the
plaintiff’s employment; and

(4) the defendant terminated the plaintiff=s employment solely
for the plaintiff=s refusal to participate in or remain silent
about the illegal activity.

Webb v. Nashville Area Habitat for Humanity, 346 S.W.3d 422, 437 (Tenn. 2011);
Sykes, 343 S.W.3d at 27; Williams, 465 S.W.3d at 111).

Defendant argues that plaintiff did not establish a prima facie case under the TPPA
for two reasons. First, it asserts that “plaintiff’s [a]mended [c]omplaint identifies no
statute, regulation or ordinance tasked to protect the public interest that was allegedly
violated in this case.” Defendant made this correct assertion to the trial court in its
memorandum supporting its summary judgment motion. In response, plaintiff cited
Emerson v. Oak Ridge Research, Inc., 187 S.W.3d 364, 371 (Tenn. Ct. App. 2005),
overruled on different grounds by Haynes, 463 S.W.3d at 41 n.6 (Tenn. 2015), wherein
this Court recognized that sexual harassment is “illegal and against public policy,”
stating:

plaintiff testified that she was the victim of sexual harassment
and assault/battery by Revis over a period of months, that she
complained of said conduct to Revis and others, and that she
was discharged shortly thereafter. The evidence of the
behavior by Revis as testified to by the plaintiff, would be
considered illegal and against public policy, as the State has
enacted specific statutes dealing with harassment and assault
and battery.
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Plaintiff also cited 18 U.S.C. § 242, which provides, in pertinent part, as follows:

Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any person in any
State . . . to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution or laws
of the United States, or to different punishments, pains, or
penalties, on account of such person being an alien, or by
reason of his color, or race, than are prescribed for the
punishment of citizens, shall be fined under this title or
imprisoned not more than one year, or both; and if bodily
injury results from the acts committed in violation of this
section, . . . shall be fined under this title or imprisoned not
more than ten years, or both[.]

The trial court did not grant summary judgment on the ground that plaintiff failed to
specifically identify in her amended complaint the alleged “illegal activity” she refused to
remain silent about. Plaintiff did, in the trial court, cite authorities that would show that
the conduct she complained of ‒ sexual harassment of her by fellow police officers, and
excessive force by other officers resulting in physical injury of an arrestee ‒ was “illegal
activity” covered by the Whistleblower Act. We affirm the trial court’s decision not to
grant summary judgment on this ground.

Second, defendant argues that plaintiff failed to establish a prima facie case
because she could not show that it, as the employer, “discharged or terminated the
plaintiff’s employment.” Defendant argues that plaintiff voluntarily resigned her
employment, rather than being fired. It points to the deposition testimony of numerous
persons, including Capt. Ayers, Chief Myers, Human Resources Officer Inman, and City
Administrator Russell Treadway, to the effect that Chief Myers directed Capt. Ayers to
accept plaintiff’s oral resignation. It is not disputed that plaintiff voluntarily orally
submitted her resignation,1 and shortly thereafter twice reaffirmed her decision to do so
after being asked to reconsider. However, plaintiff testified that Capt. Ayers told her that
she was required to submit a written resignation. Sgt. Cowan also testified that
“basically, he [Capt. Ayers] asked her for a written notice.” Plaintiff also relies upon the
defendant’s employment handbook, which states that “[a] minimum of two (2) weeks’
written notice is expected of all resigning personnel.” Defendant responds by arguing
that the handbook is not a binding contract of employment, and that the term “expected”
should not be interpreted as “required” in this context. The trial court held that there
1
Plaintiff has not presented a claim or argument that the doctrine of constructive discharge
should apply in this case.
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were disputed issues of fact regarding whether plaintiff was terminated or resigned, such
that summary judgment on this ground would be improper. For purposes of summary
judgment, we accept as true plaintiff’s factual assertions, and so we agree with the trial
court’s determination.

If a plaintiff establishes a prima facie claim under the TPPA, the burden shifts to
the defendant under “the familiar McDonnell Douglas/Burdine burden-shifting analysis
[of] the parties’ proof.” Williams, 465 S.W.3d at 111-12. As the Supreme Court
reiterated in Williams,

if an employee proves a prima facie case of
retaliation, the employee creates a rebuttable
presumption that the employer unlawfully
retaliated against him or her. The burden of
production shifts to the employer to articulate a
legitimate and nonretaliatory reason for the
action. If the employer satisfies its burden, the
presumption of retaliation “drops from the
case,” which sets the stage for the factfinder to
decide whether the adverse employment action
was retaliatory. The employee, however, “must
have an opportunity to prove by a
preponderance of the evidence that the
legitimate reasons offered by the employer were
not its true reasons, but were a pretext for
retaliation.”

Gossett, 320 S.W.3d at 780–81 (citations omitted). Despite
the fact that “intermediate evidentiary burdens shift back and
forth under this framework,” the ultimate burden of
persuading the trier of fact that the employer engaged in
unlawful retaliation remains at all times on the plaintiff
employee.

Id. at 112-13 (ellipses and brackets in original omitted).

We have observed that “[t]he sole causation element of a TPPA claim has an
important impact at this stage.” Jones, 2015 WL 9257815, at *6. The Williams Court
explained this as follows:

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 In articulating a non-retaliatory reason for discharging the
employee, the defendant employer in a TPPA case need not
proffer evidence that unlawful retaliation was no part of its
decision to terminate employment. Rather, the employer
need only introduce admissible evidence showing that
unlawful retaliation was not the sole cause of the employment
action. That is, the employer must proffer evidence that, even
if retaliation was a motivation for the discharge, there was at
least one non-retaliatory reason as well.

The burden to submit evidence at trial of a non-retaliatory
motive is one of production, not persuasion. Because
retaliatory discharge is an exception to the employment-at-
will doctrine, the employer’s proffered non-retaliatory reason
for discharging the employee need not be a sound one; it need
only be a reason other than retaliation.

Williams, 465 S.W.3d at 115 (internal citations omitted; italics in original).

In the present case, defendant argued that it had several legitimate, non-retaliatory
reasons for plaintiff’s termination. The trial court agreed, as do we. First, defendant
documented deficiencies in plaintiff’s employment performance, as memorialized in Sgt.
Cowan’s disciplinary/counseling report dated June 13, 2015. Sgt. Cowan testified on this
point as follows:

Q: As you were supervising Ms. Weinert, how did Ms.
Weinert perform for you?

A. At first, she was doing fine. She was writing tickets, she
was answering her calls. And then I started receiving
complaints that she was not backing up officers. . . . That was
late May [of] 2015.

Q. Who made those complaints to you?

A. Several people on the shifts, Brantley, Perry, Fox.

* * *

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[F]or example, one of the calls that we went on, we were
trying to serve a warrant on an aggravated domestic/stolen
vehicle situation. We had had prior incidents with that fellow
and we knew that he was potentially violent. We went to his
brother’s house where he’s known to reside to try and serve
that warrant.

Officer Weinert was the first one to the door. She knocked on
the door and the brother came to the door, said he was there.
She didn’t ask if we could come in or ‒ you know, for officer
safety, we really don’t want people to go back in the house.
They could get guns, they could come back ‒ you know, it
could become a violent situation. So we usually ask to enter
to go with them to find that person. She never did ask.

* * *

Q. All right. How about Officer Brantley? His complaint
was that she’s not backing people up?

A. Not backing people up and avoiding calls.

Q. All right. Those are two different things. Let’s start with
not backing people up.

A. . . . [T]he zone officers, . . . wanted to rotate the opposite
direction on alternate [zone rotations]. And the reason for
that was, because nobody want[ed] to work 12 hours with
Officer Weinert because they were pulling the major load of
the day.

Q. All right. So that is particular to Officer Brantley, correct?

A. No. There was several officers, yes.

Q. Okay. And there are ‒ okay, several officers that don’t
want to work with Officer Weinert?

A. For the entire shift.
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 Q. For the entire shift.

A. Because they were ending up with all the calls, all the
reports. She never backed them up.

* * *

[O]nce I received the complaints from the other officers, I
was actively listening to the radio to determine if their
complaints had any validity to it. Once I was listening to the
radio and keeping up with what was going on, I did believe
that their complaints were valid.

Second, plaintiff did not dispute that despite having witnessed the alleged incident
of excessive force, she did not report it until after about eighteen months had passed:

Q. So you waited a year and a half until first telling the
captain about this; isn’t that correct?

A. That’s correct.

Q. Isn’t it your duty as a police officer to report this up the
chain of command if you actually reasonably believed that
there was excessive force here?

A. Yes.

Q. And yet you didn’t do that, did you?

A. That’s correct.

Q. You didn’t live up to your duty as a sworn police officer;
isn’t that correct?

A. That’s ‒

MR. LOOPER: Object to the form.

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 BY MR. SPAULDING: You fully admit that under oath,
don’t you? You just admitted it?

A. Yeah.

Third, plaintiff, after having been disciplinarily counseled and presented with a list
of performance expectations that she does not argue were unreasonable, voluntarily orally
resigned her employment. After the other officers suggested that she “think about this”
and offered her a “clean slate” for her employment status, she twice affirmed her
commitment to resign. Even assuming, for summary judgment purposes, that plaintiff’s
oral resignation was ineffective because defendant required a written one and plaintiff
expressed her intent to rescind it, and that defendant’s refusal to accept her rescission was
a “termination” under the TPPA, plaintiff’s tender of resignation could be a reasonable,
non-discriminatory reason for her termination. On this point, Chief Myers testified:

Q. After you found out she didn’t want to resign why didn’t
you just let her come back to work?

A. Well, I’m just not sure that would have been a good idea.
If you come in and decide you’re going to quit, in my
experience over the years, people who are going to quit, it’s
best to let them quit.

Fourth, at the end of the meeting where plaintiff resigned, she told Sgt. Cowan, her
supervising officer, that Sgt. Cowan’s word meant nothing to her because she didn’t trust
her. As defendant argues, these factors can reasonably lead to a legitimate, non-
retaliatory conclusion that plaintiff should not have continued to be employed on the
police force.

Once an employer identifies a legitimate non-retaliatory reason, the employee is
provided “a full and fair opportunity to demonstrate that the employer’s proffered reasons
are pretextual and that unlawful [retaliation] was the true reason for the challenged
employment action.” Williams, 465 S.W.3d at 118 (brackets in original). The Supreme
Court has provided the following guidance on the pretext analysis:

the question becomes whether the plaintiff has established
that it is more likely than not that the employer’s proffered
reason ‘is mere pretext and thus a coverup’ for the employer’s
true retaliatory motive.” In evaluating the evidence, the trial
court must look at all of the evidence, including evidence
submitted by the plaintiff to establish his prima facie case.
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Circumstantial evidence is also considered. The trial court
must take into account any evidence that exposes the
“weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions” in the City’s proffered explanation. After
doing so, it must decide whether the evidence as a whole
gives rise to an inference that the employer’s proffered non-
retaliatory reason is pretextual.

In Versa v. Policy Studies, Inc., the Court explained the
concept of pretext:

The question is not whether the employer’s
decision was sound, but whether the employer’s
asserted reason for the adverse employment
decision is pretextual. The reasonableness of an
employer’s decision may be considered, but
only so far as it “illuminates the employer’s
motivations.” “The more questionable the
employer’s reason, the easier it will be for the
jury to expose it as pretext.”

Versa, 45 S.W.3d [575] at 581 [Tenn. Ct. App. 2000]. In
short, the plaintiff must show that the employer lied about the
reason it gave for terminating the plaintiff’s employment, in
order to mask its true retaliatory motive. Id. at 583.

Pretext is typically shown in one of three ways: (1) by
establishing that the employer’s proffered reasons have no
basis in fact, (2) by establishing that the proffered reasons did
not actually motivate the discharge, or (3) by establishing that
they were insufficient to motivate the discharge. The first is
accomplished by showing that the proffered reason is based
on facts that are not true; this calls into question the
reasonableness of the employer’s decision to discharge.
Regarding the second Versa method of establishing pretext—
showing that the proffered non-retaliatory reason did not
actually motivate the discharge—a plaintiff may either
produce evidence that the adverse employment decision was
more likely motivated by retaliation or “show that the
employer’s explanation is not credible.” Lastly, to show that
the proffered reason is insufficient to motivate the discharge,
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 the employee must produce evidence that other employees
who engaged in substantially the same non-protected conduct
were not fired.

Williams, 465 S.W.3d at 118-19 (internal citations omitted).

Plaintiff’s argument that defendant’s reasons for firing her were pretextual focuses
on two things. First, plaintiff argues that the video recording of the alleged incident of
excessive force does indeed actually show that the accused officers used excessive and
unwarranted force resulting in unnecessary injury to the arrestee, contrary to Chief
Ayers’ conclusion after he watched it in the course of his investigation. Second, plaintiff
points to the undisputed fact that her employee file contains no reprimands or other
disciplinary action before June of 2015. She does not, however, address the concerns
raised in the disciplinary/counseling report filed by Sgt. Cowan on June 13, 2015. We
are of the opinion that, considering all factual allegations and inferences in plaintiff’s
favor, a trier of fact could not reasonably conclude that the sole reason for plaintiff’s
termination was unlawful retaliation by defendant. See, e.g., Jones, 2015 WL 9257815,
at *12 (affirming summary judgment where “[e]ven viewing all the evidence in the light
most favorable to Plaintiffs, a reasonable juror could not conclude that the sole reason for
the Plaintiffs’ termination was their refusal to conceal or remain silent about Hogg’s
illegal activity”); Yount v. FedEx Express, No. W2015-00389-COA-R3-CV, 2016 WL
1056958, at *8 (Tenn. Ct. App., filed Mar. 17, 2016) (affirming summary judgment
where plaintiff “failed to present evidence sufficient to allow a reasonable fact finder to
conclude that [defendant’s] explanation for his termination was a pretext for
discrimination”). The trial court’s summary judgment on this ground is affirmed.

Finally, plaintiff argues that defendant should be judicially estopped from
claiming that her employment was terminated for non-discriminatory reasons, because it
has taken the position that she voluntarily resigned. However, plaintiff did not raise the
issue of judicial estoppel with the trial court, as defendant correctly argues. “Under
Tennessee law, issues raised for the first time on appeal are waived.” Black v. Blount,
938 S.W.2d 394, 403 (Tenn. 1996). Furthermore, defendant did not take such
“inconsistent and contradictory positions” as to warrant the application of the judicial
estoppel doctrine, but rather simply argued in the alternative. Barnes v. Barnes, 193
S.W.3d 495, 500 (Tenn. 2006). In other words, defendant argued first that plaintiff
voluntarily resigned; and in the alternative, if the trial court found she did not, then that
she was terminated for legitimate non-retaliatory reasons. In Barnes, the Supreme Court
recognized that “alternative pleadings are expressly permitted, regardless of consistency,”
and declined to apply the judicial estoppel doctrine where a litigant argued in the
alternative. Id. at 501.

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 V.

The trial court’s summary judgment in defendant’s favor is affirmed. Costs on
appeal are assessed to the appellants, Wendy Sterling Weinert and Matthew Walter
Weinert.

_______________________________
CHARLES D. SUSANO, JR., JUDGE

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