Evelene v. Stein v. Davidson Hotel Company ( 1996 )

EVELENE N. STEIN, )
)
Plaintiff/Appellant, ) Appeal No.
) 01-A-01-9509-CV-00407
v. )
) Davidson County Circuit Court
DAVIDSON HOTEL COMPANY, ) No. 95-C-67
)
Defendant/Appellee. )
FILED
May 8, 1996
Cecil W. Crowson
Appellate Court Clerk
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE FIRST CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE HAMILTON V. GAYDEN, JUDGE
PATRICIA A. MONTGOMERY
Westlake & Marsden, P.C.
Third National Financial Center
424 Church Street, Suite 1400
Nashville, Tennessee 37219
ATTORNEY FOR PLAINTIFF/APPELLANT
JOHN S. HICKS
STEPHEN H. BILLER
KATHERINE A. BROWN
Baker, Donelson, Bearman & Caldwell
1700 Nashville City Center
511 Union Street
Nashville, Tennessee 37219
ATTORNEYS FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED
SAMUEL L. LEWIS, JUDGE
OPINION
This is an appeal by plaintiff/appellant, Evelene N. Stein,
from a judgment dismissing five of the seven claims alleged by Ms.
Stein against defendant/appellant, Davidson Hotel Company
("Davidson").
I. Facts and History
Ms. Stein began working at the Holiday Inn Crowne Plaza on 6
June 1989. At that time, Flautt Properties, Inc. owned the hotel.
In September of 1990, Flautt sold the hotel to Davidson. After the
sale, Ms. Stein continued to work at the hotel. The complaint
alleged that Ms. Stein was fifty-one years old and that she was an
above average employee according to Davidson's own criteria.
In 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.
Davidson required all employees to sign a consent and release form.
Ms. Stein alleged that the understanding of the employees was that
Davidson would immediately terminate them if they failed to sign
the form. Further, Ms. Stein claimed that she signed the form
based on this perceived threat and that she did not realize the
form released Davidson and the testing facility from "liability for
the negligent performance or reporting of drug test results."
In October 1994, Davidson advised Ms. Stein that they had
selected her for a random drug test. Thereafter, Ms. Stein went to
Roche Biomedical Laboratories, Inc. and provided them with a urine
sample. Joe Dietz, Ms. Stein's immediate supervisor, informed Ms.
Stein that she had tested positive for drugs. Later that day, Ms.
Stein met with other Davidson managers and denied any drug use. In
2
her complaint, Ms. Stein alleged that she offered to provide
another urine sample or a blood sample, but Davidson refused these
offers. In Davidson's brief, Davidson stated that it offered to
have Roche retest Ms. Stein's original urine sample, but Ms. Stein
refused. As a result of the positive test, Davidson terminated Ms.
Stein.
On 9 January 1995, Ms. Stein filed her complaint against
Davidson. The causes of action contained in the complaint were as
follows: 1) wrongful discharge in violation of public policy as
expressed in the federal and state constitutions; 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
Ms. Stein her earned vacation time. On 7 March 1995, Davidson
filed a "Motion to Dismiss or for Summary Judgment."
On 9 June 1995, the trial court entered an order granting the
motion in part and denying it in part. The court granted
Davidson's motion to dismiss for failure to state a claim upon
which relief can be granted as to counts one, two, three, five, and
six. The court, for "reasons stated in open court," took
"Davidson's Motion regarding the fourth cause of action under
advisement pending further order." Finally, the court reviewed the
affidavits submitted by the parties and concluded that there was a
genuine issue of material fact raised by the seventh count. Based
on this conclusion, the court denied Davidson's motion as to the
seventh count. Pursuant to Tennessee Rule of Civil Procedure
54.02, the court found that there were no just reasons for delay
and held that the order was final.
Ms. Stein filed her notice of appeal with the clerk of this
3
court on 7 July 1995. The notice stated that Ms. Stein sought to
appeal that part of the 9 June 1995 order dismissing counts one,
two, and three of her complaint. Later, in her brief, Ms. Stein
voluntarily dismissed her appeal as to count three. Thus, Ms.
Stein presented this court with the following two issues:
I. Whether a cause of action for wrongful discharge
may be premised upon the termination of employment
in violation of an employee's constitutional
rights.
II. Whether a cause of action for the tortious invasion
of privacy requires state action in a case by an
employee against a private sector employer.
We acknowledge at the outset that the rights invoked by Ms.
Ms. Stein are substantial. Privacy interests cover a broad range
of human activity. In the constitutional context our courts have
recognized the privacy interest surrounding human procreation,1 the
care and custody of children,2 and consensual sexual activity
between adults.3 The right to personal autonomy is extremely
important in light of the growing intrusiveness of today’s society.
Invasions of privacy involve interferences with an individual’s
interest “in leading, to some reasonable extent, a secluded and
private life, free from the prying eyes, ears and publications of
others.” See RESTATEMENT (SECOND ) OF TORTS , § 652A cmt. b (1976).
These invasions of privacy can take many different forms, including
opening a person’s private mail, searching a persons’s safe, purse,
or wallet, or examining a person’s private bank account. RESTATEMENT
(SECOND) OF TORTS , § 652B cmt. b (1976). The invasion of this right
is no less intrusive when it is undertaken by a private person than
when it is undertaken by the government or a subsidiary of the
government. Experience teaches us that personal privacy is
1
Davis v. Davis, 842 S.W.2d 588, 600 (Tenn. 1992), cert. denied, 113
S. Ct. 1259 (1993).
2
Simmons v. Simmons, 900 S.W.2d 682, 683-84 (Tenn. 1995); Hawk v.
Hawk, 855 S.W.2d 573, 582 (Tenn. 1993).
3
Campbell v. Sundquist, App. No. 01-A-01-9507-CV-00321 slip. opn. at
18-20, 21 T.A.M. 7-4 (Tenn. App. 26 Jan. 1996).
4
threatened by the almost insatiable information gathering appetites
of not only governments but of private interests as well.
Wilkinson v. Times Mirror Corp., 264 Cal. Rptr. 194, 200 (Cal. App.
1989). The reasonable expectation of privacy would be illusory at
best if individuals could not control the circulation of personal
information and if the law only restricted the government’s
collection and retention of information.
II. Standard of Review
Before addressing Ms. Stein's issues, we must first address a
preliminary issue dealing with the standard of review. Ms. Stein
contends that the trial court's failure to exclude affidavits,
presented by both parties, converted the Rule 12.02(6) motion to
dismiss into a Rule 56 motion for summary judgment. Thus, she
suggested that we review the trial court's decision as if the court
based its decision on the principles of summary judgment.
Davidson, however, argued that this court should review the trial
court's order as if the court dismissed the counts based on a Rule
12.02(6) motion to dismiss.
We agree with Davidson. Ms. Stein's contention that a trial
court can convert a Rule 12.02(6) motion into a Rule 56 motion by
considering material outside the pleadings is correct. Knierim v.
Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976). A trial court,
however, can "prevent a conversion from taking place by declining
to consider extraneous matters." Pacific E. Corp. v. Gulf Life
Holding Co., 902 S.W.2d 946, 952 (Tenn. App. 1995). That is
precisely what happened in this case. The relevant portion of the
trial court's order provided:
In ruling upon Davidson's Motion as it pertains to the
seventh count of the Complaint, the Court has considered
the Affidavit of Casey Stovall submitted by Davidson and
has considered the Affidavit of Ms. Stein. Therefore,
5
the Court treats the Motion as it pertains to the seventh
count of the Complaint as a Motion for Summary Judgment
pursuant to Rule 56 of the Tennessee Rules of Civil
Procedure.
As to counts one, two, three, five, and six, the trial court
expressly stated that he was dismissing the counts for failure to
state a cause of action upon which relief can be granted, a Rule
12.02 ground for dismissal. It is apparent that the trial court's
actions converted the motion to dismiss as it pertained to the
seventh count into a motion for summary judgment. In contrast, the
court did not convert the motion to dismiss into a motion for
summary judgment when it addressed counts one and two, the counts
which form the basis of this appeal. Therefore, this court must
use the standard of review applicable to Rule 12.02(6) motions.
In reviewing an appeal from an order dismissing a suit
for failure to state a claim upon which relief can be
granted, we obviously are limited to the allegations in
the complaint, and we must construe the complaint
liberally in favor of the plaintiff, taking all of the
allegations of fact therein as true.
Randolph v. Dominion Bank of Middle Tenn., 826 S.W.2d 477, 478
(Tenn. App. 1991) (citing Huckeby v. Spangler, 521 S.W.2d 568, 571
(Tenn. 1975)).
III. Wrongful Discharge Claim
"Under long-established Tennessee law, an employee-at-will can
be discharged without breach of contract for good cause, bad cause
or no cause at all." Clanton v. Cain-Sloan Co., 677 S.W.2d 441,
443 (Tenn. 1984)(citing Payne v. Railroad Company, 81 Tenn. 507(1884)). Given the long history of this rule, the supreme court
was unwilling to create any exceptions. In 1984, however, the
court held that the Workers' Compensation Law implicitly included
an action for retaliatory discharge. Specifically, the action
recognized by the court allowed an employee to bring a suit against
an employer who had terminated the employee for filing a worker's
6
compensation claim. Id. at 443-45. In coming to its final
decision, the court stated as follows:
[T]he Workers' Compensation Law is a comprehensive scheme
enacted to provide a certain and expeditious remedy for
injured employees. It reflects a careful balancing of
the interests of employer and employee. . . .
Retaliatory discharges completely circumvent this
legislative scheme. Such discharges will have the effect
of relieving the employer of its duty to compensate and
the employee of his or her right to compensation. . . .
In our opinion, a cause of action for retaliatory
discharge, although not explicitly created by the
statute, is necessary to enforce the duty of the
employer, to secure the rights of the employee and to
carry out the intention of the legislature. A statute
need not expressly state what is necessarily implied in
order to render it effectual.
Id. at 443. In a later opinion, the court emphasized that its
decision had not created a new exception to the employment at will
doctrine, but "merely recognized that implicit within the
provisions of T.C.A. Sec. 50-6-114 a cause of action existed. . .
." Harney v. Meadowbrook Nursing Ctr., 784 S.W.2d 921, 922 (Tenn.
1990); see Hodges v. S.C. Toof & Co. 833 S.W.2d 896, 903 (Tenn.
1992) (O'Brien, J., concurring and dissenting).
Through the years, the supreme court has refined the test for
determining whether the courts should recognize a cause of action
for wrongful discharge.4 In 1988, the supreme court stated as
follows:
To be liable for retaliatory discharge. . . , the
employer must violate a clear public policy. Usually
this policy will be evidenced by an unambiguous
constitutional, statutory or regulatory provision.
Further, the violation must be a substantial factor in
the termination of an at-will employee, agent or officer.
Chism v. Mid-South Milling Co., 762 S.W.2d 552, 556 (Tenn. 1988).
Time and time again, the supreme court has echoed this principle.
4
Although authorities suggest that retaliatory discharge is actually
one of the wrongful discharge actions based on a public policy violation,
Tennessee's court often use the terms wrongful discharge and retaliatory
discharge interchangeably. See W. P AGE K EETON ET AL., P ROSSER AND K EETON ON THE L AW OF
T ORTS §130, at 1029-30 (5th ed. 1984); 82 A M . J UR . 2 D Wrongful Discharge § 11
(1992).
7
Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn.
1994); Anderson v. Standard Register Co., 857 S.W.2d 555, 557
(Tenn. 1993); Hodges, 833 S.W.2d at 899; Harney, 784 S.W.2d at 922-
23.
Because it is not the role of the courts to create public
policy, it has been difficult, if not impossible, for the courts to
recognize novel claims of wrongful discharge. In regard to the
courts and the creation of public policy, the Tennessee Supreme
Court stated as 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,
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 the 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.
Nashville Ry. & Light Co. v. Lawson, 144 Tenn. 78, 91, 229 S.W.
741, 744 (1920) (quoting License Tax Case, 5 Wall. 469, 18 L. Ed.
497).
The Tennessee General Assembly has also played a role in the
development of the employment at will doctrine. Through the years
the General Assembly has enacted various statutes which prohibit
employers from terminating employees for certain reasons. For
example, an employer may not terminate an employee because the
employee served as a juror5; because an employee is of a particular
5
Tenn. Code Ann. § 22-4-108(f)(1) (1994); see also Hodges v. S.C. Toof
& Co., 833 S.W.2d 896, 899 (Tenn. 1992).
8
race, creed, color, religion, sex, age, or national origin6;
because an employee is disabled7; because an employee refused to
participate in or refused to remain silent about illegal
activities8; or because an employee filed a complaint, instituted
a proceeding or investigation, testified in a proceeding, or
exercised a right pursuant to the Occupational Safety and Health
Act of 1972.9
To summarize, the statutes of this state provide employees
relief from certain employer conduct. In addition, the courts have
recognized a very limited cause of action for wrongful discharge
based on a violation of clear public policy. As to the instant
case, it is not the province of this court to create any additional
exceptions to the employment at will doctrine absent a violation of
clear public policy evidenced by an unambiguous constitutional,
statutory, or regulatory provision.
Ms. Stein's first issue is very broad and includes many topics
which are irrelevant to this case. The actual issue presented by
this appeal is whether the trial court correctly found that count
one of Ms. Stein's complaint failed to state a claim upon which
relief can be granted. In resolving this issue, there are two
questions derived from the above discussion which we must answer.
First, is there a statutory basis for Ms. Stein's cause of action,
and if so, did Ms. Stein allege the necessary elements? Second,
did count one of Ms. Stein’s complaint allege a wrongful discharge
action based on the theory that Davidson violated clear public
6
Tenn. Code Ann. § 4-21-301(1) (1991) (regarding retaliation or
discrimination against an employee who has opposed a discriminatory practice);
Tenn. Code Ann. § 4-21-401(a) (1991) (defining a discriminatory practice in
regard to employers); see also Newsom v. Textron Aerostructures, No. 01A01-
9504-CH-00151, 1995 WL 614203, at *7-*9 (Tenn. App. 20 October 1995); Roberson
v. University of Tenn., 829 S.W.2d 149, 152 (Tenn. App. 1992).
7
Tenn. Code Ann. § 8-50-103(a) (1993).
8
Tenn. Code Ann. § 50-1-304(a), (c) (1991).
9
Tenn. Code Ann. §§ 50-3-106(7), 50-3-409(a) (1991).
9
policy? If we answer these question in the negative, we must
affirm the decision of the trial court.
It is the opinion of this court that the trial court correctly
dismissed count one. In her complaint, Ms. Stein alleged that
"[p]laintiff's employment was terminated for the sole reason that
Plaintiff tested positive on a single random urine drug screen
negligently performed by Defendant, Roche."10 There are no statutes
which prohibit an employer from discharging an employee for a
positive drug test. Because there is no statutory cause of action,
the answer to the first question is no.
The second question is more difficult. To explain, the cases
brought before Tennessee's courts have alleged retaliatory
discharge. The premise of an action for retaliatory discharge is
that an employer terminates an employee because that employee acted
in a manner which was detrimental to the employer. In other words,
the employer retaliates against the actions of the employee.
Further, the action of the employee is generally a protected action
or an action which society deems beneficial such that terminating
an employee for acting or failing to act violates public policy.
Examples of beneficial or protected actions include filing a
workers' compensation claim11 or a discrimination claim.12 Clearly,
this is not the situation presented by this case.
Ms. Stein's complaint stated as follows:
18. Davidson's stated policy of terminating
employees for a single positive drug test result violates
the public policy of the State of Tennessee as expressed
in:
(a) Article I §8 of the Tennessee
Constitution which guarantees citizens of this
10
At no time was Roche a party to this action.
11
Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 444-45 (Tenn. 1984).
12
Roberson v. University of Tenn., 829 S.W.2d 149, 152 (Tenn. App.
1992).
10
state the right to privacy.
(b) Article I §7 of the Tennessee
Constitution which protects individuals from
unreasonable searches and seizures.
(c) The common law of the State of
Tennessee, which prohibits intrusions on an
individual's privacy or solitude.
Clearly, Ms. Stein's contention is that Davidson's termination
policy, not its mandatory drug testing program, violates
Tennessee's public policy. Thus, the issue before this court is
whether an employer violates public policy, as evidenced by
constitutional, statutory, or regulatory provisions, when that
employer institutes a policy allowing it to discharge employees who
test positive for drugs.
In her brief, Ms. Stein argued that Davidson’s policy of
terminating employees for a single positive drug test result
violated public policy because there were no safeguards to ensure
the accuracy of the result or to prevent the collection method from
being too intrusive. In other words, Ms. Stein’s argument in her
brief was that both Davidson's termination policy and Davidson's
method of obtaining the test results violated the public policy of
this state. In her complaint, however, Ms. Stein only alleged that
Davidson's termination policy violated the public policy. Because
this appeal concerns a motion to dismiss, our analysis is
constrained by the allegation found in the pleadings.
While the method in which Davidson conducted the test may
violate some public policy in favor of accuracy and minimal
intrusion, Davidson's policy of terminating employees who test
positive for drugs does not violate any public policy known to this
court. To the contrary, Tennessee's public policy is in total
opposition to drug use in the workplace.
Ms. Stein insists that the state’s public policy against
terminating employees who test positive for drugs can be found in
11
the personal privacy protections of article 1, sections 7 and 8 of
the Tennessee Constitution. Her contention that Tennessee’s Bill
of Rights protect the rights of citizens is correct, however, the
Tennessee Bill of Rights protects against governmental
interference. Freshwater v. State, 2 Tenn. Crim. App. 314, 320,
453 S.W.2d 446, 449 (1969), cert. denied, 400 U.S. 840 (1970).
Recognizing this fundamental principal of constitutional
interpretation, other courts have held that state constitutions are
not sources of public policy in wrongful discharge cases unless the
constitutional provision at issue directly addresses private
conduct. 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).
State statutes and regulations may also provide the clear
public policy required for a wrongful discharge action.
Tennessee’s statutes, however, seem to favor the use of drug
testing. The Tennessee General Assembly has specifically
authorized drug testing for public school students13 and the
security personnel employed by the Department of Corrections and
Youth Development.14 In 1995, the General Assembly enacted a
statute providing that private sector employees are not entitled to
unemployment compensation if they left their most recent work
"either to avoid taking a drug or alcohol screening test, or after
receiving a positive result to a drug or alcohol screening test."15
Some courts have even looked to the common law as a source of
the clear public policy. These courts concluded that the state’s
recognition of a common law action for invasion of privacy supplied
13
Tenn. Code Ann. §49-6-4213 (1990).
14
Tenn. Code Ann. § 41-1-122 (1990).
15
Tenn. Code Ann. § 50-7-302(a)(9)(Supp. 1995).
12
the clear public policies needed to support a wrongful discharge
cause of action. See Borse, 963 F.2d at 620-22; Hennessy v.
Coastal Eagle Point Oil Co., 609 A.2d 11, 17-9 (N.J. 1992). The
courts of Tennessee have never gone this far. The Tennessee
Supreme Court has stated that "clear public policy" is to be found
in an "unambiguous constitutional, statutory, or regulatory
provision." Anderson, 857 S.W.2d at 557.
Ms. Stein’s wrongful discharge claim fails to state a claim
upon which relief can be granted because she has not pointed to any
clear public policy against terminating employees who test positive
for drugs. To the contrary, creating a drug free work environment
in the public and private sector is completely consistent with the
State of Tennessee’s public policy.
IV. Invasion of Privacy
The second count of Ms. Stein's complaint alleged the
following:
24. By requiring Plaintiff to submit to a random drug
test which has no relation to Plaintiff's duties as an
employee of Davidson, Davidson has tortiously intruded
into Plaintiff's privacy.
25. . . . The intrusion into Plaintiff's personal and
private habits is in violation of Plaintiff's
constitutional and common law rights.
These allegations reveal that Ms. Stein premised her invasion of
privacy claim on two bases; one constitutional and one common law.
The trial judge dismissed the entire count holding "that the second
count of the Complaint d[id] not allege the state action required
to support the constitutional claim of invasion of privacy. . . ."
In her brief, Ms. Stein argued that it is not necessary for a
plaintiff to allege state action because Tennessee recognizes a
common law right of action for invasion of privacy against a
private defendant. Thus, it is Ms. Stein's contention that the
13
trial judge could not have dismissed her common law claim for lack
of state action.
In order to establish a violation of the constitutional right
to privacy, a party must allege state action, however; a cause of
action for tortious invasion of privacy is not dependant on state
action. See Ensor v. Rust Eng’g Co., 704 F. Supp. 808, 816 (E.D.
Tenn. 1989); Martin v. Senators, Inc., 220 Tenn. 465, 471, 418
S.W.2d 660, 663 (1967)(stating when an individual is liable for
tortious invasion of privacy). Thus, the trial court erred in
dismissing count two of Ms. Stein's complaint in its entirety on
this basis.
Ms. Stein's complaint included allegations involving two
invasion of privacy theories. The first was that Davidson invaded
her privacy by intruding into her seclusion. Second, she contended
that Davidson publicly disclosed private information by telling
certain persons about the results of her drug test.
A. Public Disclosure of a Private Fact
In a 1967 case, the Tennessee Supreme Court defined the tort
of invasion of privacy as follows: "'A person who unreasonably and
seriously interferes with another's interest in not having his
affairs known to others or his likeness exhibited to the public is
liable to the other.'" Martin, 418 S.W.2d at 663 (1967) (quoting
RESTATEMENT OF TORTS §867 (1939)). The court then went on to find that
"liability exists only if the conduct is such that a defendant
should have realized it would be offensive to persons of ordinary
sensibilities; and that it is only where the intrusion had gone
beyond the limits of decency that liability accrues. . . ." Id. at
664; see also Swallows v. Western Elec. Co., 543 S.W.2d 581, 583
14
(Tenn. 1976); Fann v. City of Fairview, 905 S.W.2d 167, 170 (Tenn.
App. 1994); Dunn v. Moto Photo, Inc., 828 S.W.2d 747, 752 (Tenn.
App. 1991).
In 1987, the Court of Appeals for the Western Section
determined that a plaintiff, who had alleged public disclosure of
a private fact, failed to establish that the defendant had made the
information public. The court determined that, in order to
successfully assert a public disclosure claim, the plaintiff had to
establish that "the matter is made public, by communicating it to
the public at large, or to so many persons that the matter must be
regarded as substantially certain to become one of public
knowledge." Gentry v. E. I. DuPont De Nemours and Co., 1987 WL
15854, at *3 (Tenn. App. 18 August 1987)(quoting RESTATEMENT (SECOND )
OF TORTS § 652(d) cmt. a (1976)). They then found that the facts
established that only a few employees had heard the information and
that the defendant instructed them not to repeat it. Thereafter,
the court upheld the finding of the trial court in favor of the
defendant. Id. at *4.
The only allegation regarding the extent of the disclosure
stated as follows:
Contrary to the requirement of confidentiality in
Davidson's alcohol/drug testing policy, the results of
Plaintiff's drug test were disclosed to one of
Plaintiff's peers and to one of Plaintiff's subordinates.
Upon information and belief, Plaintiff believes that
these results have been disclosed to additional employees
of Davidson. The results of Plaintiff's drug test were
revealed to employees who did not have a legitimate
interest in having this information available.
Construing the complaint liberally, one finds that Ms. Stein failed
to allege the disclosure necessary to state a cause of action for
public disclosure of a private fact. She alleges that Davidson
disclosed the information to only two people. Further, the
allegation on information and belief does not allege the necessary
15
disclosure because it does not necessarily follow that Davidson
communicated the information to so many people that it is
substantially certain to become public knowledge. Because Ms.
Stein failed to allege a necessary element of the cause of action,
the court correctly dismissed the claim.
B. Intrusion into Seclusion
The courts of this state have held that a plaintiff may waive
his or her right to privacy and, thus, waive their right to bring
an action for an invasion of that right. Martin, 418 S.W.2d at
662-64; see Langford v. Vanderbilt Univ., 199 Tenn. 389, 403-04,
287 S.W.2d 32, 39 (1956). "A waiver or relinquishment of this
right, or of some aspect thereof, may be implied from the conduct
of the parties and the surrounding circumstances." Martin, 418
S.W.2d at 663 (quoting 41 AM . JUR . p. 937). It is the opinion of
this court that Ms. Stein waived her right to bring an action
against Davidson for intruding into her seclusion.
It is Ms. Stein’s contention that the "[e]mployees were forced
to consent to random drug testing or risk immediate termination."
Nevertheless, she did consent to the testing. Further, there were
no allegations that she objected to the test when asked to sign the
form or when selected for the test. In addition, she did not
allege that she sought other employment after having to sign the
form.
Even if we were to find that Davidson "forced" Ms. Stein to
sign the consent form, our conclusion would be the same. To
explain, Ms. Stein began working for the hotel in June 1989, and
Davidson instituted the drug policy in February 1992. Ms. Stein
continued to work at the hotel for over two years even though she
16
knew the nature of the test and that Davidson could choose her for
a test at any time. There is no evidence that she was dissatisfied
with her employment or that she intended to find other work. In
fact, the complaint established that the quality of her work was
above average.
We are of the opinion that Ms. Stein’s conduct and the
surrounding circumstances established that she waived her right to
bring this action. Thus, the trial court properly dismissed count
two of Ms. Stein’s complaint.
V. Conclusion
For the foregoing reasons, we are of the opinion that the
decision of the trial court should, in all respects, be affirmed.
The judgment of the trial court is therefore affirmed with costs on
appeal assessed to plaintiff/appellant, Evelene N. Stein, and the
cause is remanded to the trial court for any further necessary
proceedings.
______________________________
SAMUEL L. LEWIS, JUDGE
CONCUR:
______________________________
HENRY F. TODD, P.J., M.S.
______________________________
WILLIAM C. KOCH, JR., JUDGE
17