John TODD and Cynthia Bank-Harris v. SHELBY COUNTY, Tennessee , 2012 Tenn. App. LEXIS 910 ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 30, 2012
JOHN TODD and CYNTHIA BANK-HARRIS v.
SHELBY COUNTY, TENNESSEE
Direct Appeal from the Circuit Court for Shelby County
No. CT-000194-07 Walter C. Kurtz, Senior Judge
No. W2012-00961-COA-R3-CV - Filed December 27, 2012
This is an appeal from the grant of summary judgment in favor of Appellee Shelby County.
Appellants, former employees of the Shelby County Department of Homeland Security, filed
suit against Appellee for retaliatory discharge under both the Tennessee Public Protection
Act, Tennessee Code Annotated Section 50-1-304, and the Tennessee Public Employee
Political Freedom Act, Tennessee Code Annotated Section 8-50-603. The trial court
determined that Appellants had failed to meet their burden to show that the termination of
their employment was causally connected to any whistleblowing activity and granted
judgment in favor of Appellee. Discerning no error, we affirm.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed
J. S TEVEN S TAFFORD, J. , delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Bradley W. Eskins and James E. King, Jr., Memphis, Tennessee, for the appellants, John
Todd and Cynthia Banks-Harris.
Kim Koratsky, Memphis, Tennessee, for the appellee, Shelby County, Tennessee.
OPINION
On April 15, 2005, Cynthia Banks-Harris was appointed, by then-Shelby County
Mayor A. C. Wharton, to the position of Shelby County Grants Manager for the Appellee
Shelby County Department of Homeland Security (“SCDHS”). Prior to her appointment
with the SCDHS, Ms. Harris was the grants manager for the Memphis Police Department.
On September 12, 2005, John Todd (together with Ms. Harris, “Plaintiffs,” or “Appellants”)
began volunteering as a training and exercise coordinator for the SCDHS. On October 15,
2005, Mayor Wharton appointed Mr. Todd to a full-time position as training and exercise
coordinator. On April 1, 2006, Mayor Wharton appointed Mr. Todd to the position of
interim Administrator for the District Eleven SCDHS when the former director, James
Bolden, resigned. At all pertinent times, Ms. Harris reported directly to Mr. Todd.
The SCDHS manages grants for District Eleven and, at all times pertinent, received
funding to operate from Federal and State grants. In managing its grant monies, the SCDHS
first prepares a budget, which it presents to the Tennessee Emergency Management Agency
(“TEMA”). TEMA then sends the budget to the Office of Domestic Preparedness (“ODP”),
which is a branch of the United States Government. If ODP approves the budget, it returns
it to the SCDHS, after which time the SCDHS begins the acquisition process. After the
acquisition process is completed, the SCDHS submits reimbursement claims to TEMA,
which in turn submits the claims to the United States Government for payment. The United
States Government makes payments to TEMA, which forwards the payments to the SCDHS.
The entire process is governed by the Code of Federal Regulations (“CFR”).1
According to the complaint, throughout 2005, Ms. Harris received emails and notes
from Mayor Wharton, Ms. Syblle Noble, the Assistant Chief Administrative Officer for
Shelby County, and Mr. Ted Fox, the Director of the Shelby County Division of Public
Works. The thrust of the correspondence was to praise Ms. Harris for her work in the
administration of the SCDHS grants.
In January of 2006, Ms. Harris became concerned, allegedly due to inadequate staffing
in her department, that several grants would expire. Ms. Harris determined that the SCDHS
needed to request extensions of time so that grant funds for certain equipment purchases
would not be lost. To this end, Ms. Harris sought assistance from Shelby County Grants
Management Office employees Robin Collins and Angela Bryce. On February 2, 2006, Ms.
Harris received an email from Ted Fox, who informed her that Mayor Wharton had
appointed Martha Lott to spearhead the Homeland Security Grant Taskforce. Prior to her
appointment, Ms. Lott was Administrator for the Metropolitan Planning Organization; in
February 2006, the Shelby County Grants Management Office was included as part of the
Homeland Security Grants Taskforce. The Grants Management Office was important to the
SCDHS because the members were familiar with all of the federal regulations concerning
grant management. In the complaint, Appellants contend that the Shelby County Grants
1
Although the parties do not dispute that the CFR governs the SCDHS’s receipt and application of
grant monies, the record does not indicate the exact sections of the CFR that are applicable. Regardless, this
appeal does not turn on application of the statutory scheme under the CFR and so the exact citations are not
necessary to its adjudication.
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Management Office employees were removed from the Homeland Security Grants Taskforce.
This decision, as argued by Appellants, made it difficult, if not impossible, to detect federal
grant violations. The complaint avers that, on February 16, 2006, Ms. Lott addressed a
memorandum to John Fowlkes, who was, at that time, the Shelby County Chief
Administrative Officer, indicating that “[SCDHS] staff is still contacting TEMA when
advised that all calls to TEMA would go through me.” Appellants contend that Ms. Lott’s
memo to Mr. Fowlkes was for the purpose of prohibiting Appellants from contacting TEMA
concerning any questionable grant expenditures.
Beginning in July of 2006, Ms. Harris states that she became concerned with what she
perceived as illegal budget changes, false claims, misclassifications, and perhaps theft of
certain grant funds. Ms. Harris brought her concerns to Ms. Lott, Mr. Todd, and Mr.
Fowlkes, and also reported her findings to internal auditors, Wendy Thomas and Richard
Davis. When Ms. Harris was not satisfied with Ms. Lott’s response, she allegedly emailed
Mayor Wharton’s office with her concerns. These emails are not included in our record.
Consequently, it is impossible to tell not only when they were sent or to whom, or if Mayor
Wharton ever knew about the alleged correspondence. Regardless, there is no indication in
the record that Mayor Wharton and Ms. Harris ever spoke directly or met to discuss Ms.
Harris’s concerns.
On August 30, 2006, both Mr. Todd and Ms. Harris received notification that neither
of them would be re-appointed by Mayor Wharton in his second term of office.2 On January
11, 2007, Mr. Todd filed his original complaint. On August 29, 2007, Ms. Harris filed her
original complaint in the Circuit Court at Shelby County. Shelby County filed answers to
both complaints, wherein it denied the material allegations made by Appellants. Appellants’
original complaints were consolidated by order of January 6, 2008. On December 4, 2009,
Appellants filed a joint amended complaint for injunctive relief, whistle blower retaliation
and violation of the Public Employee Political Freedom Act. Shelby County filed its answer
on February 25, 2010, in which it denies the material allegations made in the amended
complaint. On July 8, 2011, Shelby County moved for summary judgment, which was
2
There is some question in this record as to whether failure to re-appoint Appellants constitutes a
termination of their employment for purposes of either the TPPA or the PEPFA. Although, in its appellate
brief, Shelby County does appear to argue that termination of employment and failure to re-appoint are not
synonymous actions, from our review of the record, this argument was not espoused at the trial level, nor did
the trial court make any ruling on this question. Moreover, Appellee has provided this Court with no
authority from which we can conclude that failure to re-appoint is not a termination of employment, nor have
we found such authority in our own research. Regardless, at the summary judgment stage, we must give all
reasonable inferences in favor of the non-moving party, here Appellants. Doing so, we must infer that the
failure to re-appoint the Appellants to their positions was a termination of their employment for purposes of
summary judgment.
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opposed by Appellants. On September 13, 2011, Appellants moved for a change of venue
or, in the alternative, to appoint a special judge. The motion was granted and Senior Judge
Walter Kurtz was appointed to hear the case.
A hearing on the motion for summary judgment was held on December 20, 2011. By
order of January 23, 2012, Judge Kurtz granted Shelby County’s motion for summary
judgment and dismissed Appellants’ lawsuit. In its order, the court notes that the parties
accept the application of Tennessee Code Annotated Section 50-1-304(g) and the Tennessee
Supreme Court’s case of Allen v. McPhee, 240 S.W.3d 803 (Tenn. 2007) as the applicable
law in the case. The court further notes that Appellants “concede that their common law
retaliatory discharge claim cannot be sustained against the county because of immunity.”
Concerning the alleged violation of the Tennessee Public Employees Political Freedom Act,
Tennessee Code Annotated Section 8-50-603 (“TPEPFA”), the court found that:
[w]hile there is some proof in the record that some of the
complaints made by the plaintiffs were reported to an elected
public official, there is no proof that the elected official passed
those complaints on to the authorities responsible for plaintiffs.
The Court has no affidavit or deposition from that elected
official, and the record would not support a finding consistent
with a violation of the [TPEPFA].
The court also denied Appellants’ whistleblower claim, under Tennessee Code
Annotated Section 50-1-304. The court’s decision was based on the following findings:
It is the Court’s opinion that the plaintiffs have made at least a
showing to shift the burden. In response, the defendant has
shown that a legitimate reason existed for the plaintiffs’
discharges, e.g., mismanagement of the Agency. The burden
then shifts back to the plaintiffs to show that the reason given by
the defendant was not the true reason but a pretext for unlawful
retaliation. In this context, plaintiffs have to show that their
termination was based “solely” on the report of the illegal
activities or an “exclusive causal relationship between [the]
whistleblowing activity and [the] subsequent discharge.”
* * *
The Court is of the opinion that plaintiffs have failed to
carry this burden. . . . Even giving plaintiffs credit for the
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legitimate inference to which they are entitled, they have failed
to rebut defendant’s explanation under the standards set forth in
Tennessee Code Annotated Section 50-1-304(g) and the case
law.
Appellants appeal. They raise four issues for review as stated in their brief:
1. Appellants can state a claim for violation of the Tennessee
Public Protection Act.
2. The decision not to reappoint Appellants was CLOSE in time
to Appellants’ refusal to remain silent about illegal activities.
3. There is a causal connection between the Appellants’ reports
of illegal activities and their unlawful termination and
Appellants have proof that the alleged legitimate reason for
Appellants’ termination is pretext for whistleblower retaliation.
4. Appellants can state a prima facie case under the Public
Employee Political Freedom Act.
Because this case was adjudicated upon grant of summary judgment in favor of
Shelby County, we first note that a trial court's decision on a motion for summary judgment
presents a question of law. Our review is, therefore, de novo with no presumption of
correctness afforded to the trial court's determination. Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). “This Court must make a fresh determination that the requirements of
Tennessee Rule of Civil Procedure 56 have been satisfied.” Mathews Partners, L.L.C. v.
Lemme, No. M2008-01036-COA-R3-CV, 2009 WL 3172134, at *3 (Tenn. Ct. App.2009)
(citing Hunter v. Brown, 955 S.W.2d 49, 50–51 (Tenn. 1997)).
When a motion for summary judgment is made, the moving party has the burden of
showing that “there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may
accomplish this by either: (1) affirmatively negating an essential element of the non-moving
party's claim; or (2) showing that the non-moving party will not be able to prove an essential
element at trial. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008). However,
“[i]t is not enough for the moving party to challenge the nonmoving party to ‘put up or shut
up’ or even to cast doubt on a party's ability to prove an element at trial.” Id. at 8. If the
moving party's motion is properly supported, “[t]he burden of production then shifts to the
nonmoving party to show that a genuine issue of material fact exists.” Id. at 5 (citing Byrd
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v. Hall, 847 S.W.2d 208, 215 (Tenn.1993)). The non-moving party may accomplish this by:
“(1) pointing to evidence establishing material factual disputes that were overlooked or
ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party;
(3) producing additional evidence establishing the existence of a genuine issue for the trial;
or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn.
R. Civ. P. 56.06.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citations
omitted). In applying the burden shifting analysis on a motion for summary judgment, it is
well settled that a court may not consider hearsay evidence. Specifically, Tennessee Rule of
Civil Procedure 56.06 provides:
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or
certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith. The court
may permit affidavits to be supplemented or opposed by
depositions, answers to interrogatories, or further affidavits.
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the
mere allegations or denials of the adverse party's pleading, but
his or her response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine
issue for trial. If the adverse party does not so respond, summary
judgment, if appropriate, shall be entered against the adverse
party. Expert opinion affidavits shall be governed by Tennessee
Rule of Evidence 703.
Tenn. R. Civ. P. 56.06.
When reviewing the evidence, we must determine whether factual disputes exist. In
evaluating the trial court's decision, we review the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in the nonmoving party's favor. Stovall
v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). If we find a disputed fact, we must “determine
whether the fact is material to the claim or defense upon which summary judgment is
predicated and whether the disputed fact creates a genuine issue for trial.” Mathews
Partners, 2009 WL 3172134, at *3 (citing Byrd, 847 S.W.2d at 214). “A disputed fact is
material if it must be decided in order to resolve the substantive claim or defense at which
the motion is directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists if “a reasonable jury
could legitimately resolve the fact in favor of one side or the other.” Id. “Summary
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[j]udgment is only appropriate when the facts and the legal conclusions drawn from the facts
reasonably permit only one conclusion.” Landry v. South Cumberland Amoco, et al., No.
E2009–01354–COA–R3–CV, 2010 WL 845390, at *3 (Tenn. Ct. App. March 10, 2010)
(citing Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995)).
Concerning the respective burdens of proof that the parties must bear under the
burden-shifting analysis set out above, the trial court specifically held that Tennessee Code
Annotated Section 50-1-304(g) and the Tennessee Supreme Court’s case of Allen v. McPhee,
240 S.W.3d 803 (Tenn. 2007), control. Despite this ruling, Appellant’s urge this Court to
apply the standard found in Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn. 2010).
In Gossett, the Tennessee Supreme Court held that the McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) burden-shifting analysis is not applicable to a claim for retaliatory
discharge under the Tennessee Human Rights Act at the summary judgment stage “because
it is incompatible with Tennessee summary judgment jurisprudence.” 3 Gossett, 320 S.W.3d
at 779; see also id. at 782 (reviewing the continued viability of the McDonnell Douglas
standard in light of Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008)).
Appellants’ reliance on Gossett is misplaced because Gossett was abrogated by the
Legislature’s amendment of Tennessee Code Annotated Section 50-1-304, to add subsection
(g), which provides:
(g) In any civil cause of action for retaliatory discharge brought
pursuant to this section, or in any civil cause of action alleging
3
In McDonnell Douglas, the United States Supreme Court set forth the “basic allocation of burdens
and order of presentation of proof in a Title VII case alleging discriminatory treatment.” Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248 (1981). Pursuant to McDonnell Douglas, if an employee proves a prima
facie case of discrimination or retaliation, the employee creates a rebuttable presumption that the employer
unlawfully discriminated or retaliated against him or her. Burdine, 450 U.S. at 254. The burden of
production shifts to the employer to articulate a legitimate and nondiscriminatory or nonretaliatory reason
for the action. Id. at 252–53. If the employer satisfies its burden, the presumption of discrimination or
retaliation “drops from the case,” id. at 255 n.10, which sets the stage for the factfinder to decide whether
the adverse employment action was discriminatory or retaliatory. U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711 (1983). 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 discrimination.” Burdine, 450 U.S. at 253.
In Anderson v. Standard Register Co., 857 S.W.2d 555, 556 (Tenn. 1993), our Supreme Court first
adopted the McDonnell Douglas burden-shifting framework. Thereafter, in cases such as Allen, courts
applied the holding in Anderson to cases for retaliatory discharge, thus making the McDonnell Douglas
framework applicable at the summary judgment stage. This Court’s opinion in Gossett ostensibly overruled
the Anderson decision by holding that the burden-shifting framework of McDonnell Douglas does not apply
at the summary judgment stage in Tennessee. Gossett, 320 S.W.3d at 785. In response to this Court's
decision in Gossett, the General Assembly enacted Tennessee Code Annotated section 50-1-304(g).
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retaliation for refusing to participate in or remain silent about
illegal activities under Tennessee common law, the plaintiff
shall have the burden of establishing a prima facie case of
retaliatory discharge. If the plaintiff satisfies this burden, the
burden shall then be on the defendant to produce evidence that
one (1) or more legitimate, nondiscriminatory reasons existed
for the plaintiff's discharge. The burden on the defendant is one
of production and not persuasion. If the defendant produces such
evidence, the presumption of discrimination raised by the
plaintiff's prima facie case is rebutted, and the burden shifts to
the plaintiff to demonstrate that the reason given by the
defendant was not the true reason for the plaintiff's discharge
and that the stated reason was a pretext for unlawful retaliation.
The foregoing allocations of burdens of proof shall apply at all
stages of the proceedings, including motions for summary
judgment. The plaintiff at all times retains the burden of
persuading the trier of fact that the plaintiff has been the victim
of unlawful retaliation.
See 2011 Pub.Acts, c. 461, § 2. This change became effective on June 10, 2011.
In Allen v. McPhee, 240 S.W.3d 803 (Tenn. 2007), which was decided prior to the
Legislature’s amendment of Tennessee Code Annotated Section50-1-304, the Tennessee
Supreme Court held:
[W]e hold that in order to state a prima facie case for retaliation
under the THRA an employee must demonstrate: 1) that she
engaged in activity protected by the THRA; 2) that the exercise
of her protected rights was known to the defendant; 3) that the
defendant thereafter took a materially adverse action against her;
and 4) there was a causal connection between the protected
activity and the materially adverse action. The burden-shifting
analysis that follows the establishment of a prima facie case
remains unchanged by [Burlington Northern & Santa Fe Ry.
Co. v.]White[, 548 U.S. 53 (2006)]. After an employee
establishes a prima facie case of retaliation, the burden of
production shifts to the defendant to articulate a legitimate,
non-discriminatory reason for the materially adverse action.
Miller, 122 S.W.3d at 776; see also Canitia, 903 F.2d at 1066.
If the defendant articulates such a reason, the employee, who
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bears the burden of persuasion throughout the process, must
present evidence demonstrating that the articulated reason is
pretextual and that the defendant's action was actually motivated
by a desire to retaliate against the employee. Miller, 122 S.W.3d
at 776; see also Canitia, 903 F.2d at 1066.
Id. at 820-21. It is clear that the burden-shifting language in Allen mirrors the Legislature’s
addition of Section 50-1-304(g). Accordingly, although we concede that the Tennessee
Supreme Court’s holding in Gossett may have initially abrogated, or at least called into
question, the burden-shifting analysis set out in Allen, when the Legislature passed
Tennessee Code Annotated Section 50-1-304(g), the Allen holding was ostensibly revived.
The question, then, is whether the amendment to Section 50-1-304(g) is applicable to this
case, which was pending at the time the amendment became effective on June 10, 2011.
The Tennessee Constitution reads “[t]hat no retrospective law, or law impairing the
obligation of contracts, shall be made.” Article 1, § 20. That section has uniformly been
interpreted to mean that the Legislature may enact laws that have a retrospective application
only so long as they do not impair the obligations on contracts or impair vested rights. See
Wynne's Lessee v. Wynne, 32 Tenn. 404 (1852); Hamilton County v. Gerlach, 140 S.W.2d
1084 (Tenn. 1940). However, statutes that are considered to be procedural or remedial in
nature may generally be applied retrospectively to cases pending at the time of their effective
date. Saylors v. Riggsbee, 544 S.W.2d 609 (Tenn. 1976). The rationale is that such statutes
do not affect the vested rights or liabilities of the parties, because they merely address the
way in which a legal right is enforced, or provide a means for redressing wrongs and
obtaining relief. Nutt v. Champion International Corp., 980 S.W.2d 365 (Tenn. 1998).
As a practical matter, of course, many statutes that were enacted for purposes of
procedural reform so impair vested rights that their retrospective application is not permitted.
See, e.g., Kee v. Shelter Insurance, 852 S.W.2d 226 (Tenn. 1993) (amendments to the
savings statute). There are also cases where a party has claimed that retrospective application
of a statute would impair its rights, but where the courts have held that the purported effect
upon those rights do not prevent them from applying the statute retrospectively. See Morford
v.Yong Kyun Cho, 732 S.W.2d 617 (Tenn. Ct. App. 1987) (change in procedures for
avoiding the jurisdictional limits of general sessions courts when appealing from that court
to circuit court).
In Ross v. Tennessee Farmers Mutual Insurance, 592 S.W.2d 897 (Tenn. Ct. App.
1979) , this Court articulated the following formula:
[R]emedial or procedural statutes apply retrospectively not only
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to causes of action arising before such acts become law, but to
all suits pending when the legislation takes effect, unless the
legislature indicates a contrary intention or immediate
application would produce an unjust result. . . . The usual test
of the ‘substantive’ or ‘procedural’ character of a statute for this
purpose is to determine whether or not application of the new or
amended law would disturb a vested right or contractual
obligation.
Id. at 898 (emphasis added). Applying the foregoing principles to the instant case, it is clear
that the amendment to Tennessee Code Annotated Section 50-1-304(g) was procedural in
nature, in that the amendment clarifies and outlines the procedural burden-shifting applicable
to TPPA cases; however, this amendment does not disturb any vested right or contractual
obligation that Appellants might have. The hearing on the motion for summary judgment in
this case was held on December 20, 2011 and the order granting summary judgment was
entered on January 23, 2012. Thus, the issues in this case were decided well after the
effective date of Tennessee Code Annotated Section 50-1-304. Accordingly, we conclude
that Tennessee Code Annotated Section 50-1-304(g) and Allen, to the extent it mirrors that
statute, are applicable to the instant case.
With the foregoing parameters in mind, we turn to address Appellants’ issues.
I. Tennessee Public Protection Act Claims
The Tennessee Public Protection Act, Tennessee Code Annotated Section 50-1-304,
also known as the “Whistleblower Act” (“TPPA”), was enacted as part of the Tennessee
Public Protection Act of 1990. 1990 Tenn. Pub. Acts 771. The TPPA provides, in pertinent
part, as follows:
(a) As used in this section:
(1) “Employee” includes, but is not limited to:
(A) A person employed by the state or any municipality, county,
department, board, commission, agency, instrumentality,
political subdivision or any other entity of the state;
* * *
(C) A person who receives compensation from the federal
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government for services performed for the federal government,
notwithstanding that the person is not a full-time employee of
the federal government;
* * *
(2) “Employer” includes, but is not limited to:
(A) The state or any municipality, county, department, board,
commission, agency, instrumentality, political subdivision or
any other entity of the state;
* * *
(3) “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.
(b) No employee shall be discharged or terminated solely for
refusing to participate in, or for refusing to remain silent about,
illegal activities.
* * *
(d)(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.
Tenn. Code Ann. § 50-1-304.
The provisions of this statute create a narrowly crafted exception to the
long-established common law employment-at-will doctrine, which provides generally that
“an employment contract for an indefinite term is terminable at the will of either the
employer or the employee for any cause or for no cause.” Guy v. Mut. of Omaha Ins. Co.,
79 S.W.3d 528, 535 (Tenn. 2002); see also Mason v. Seaton, 942 S.W.2d 470, 474 (Tenn.
1997) (“Employment-at-will is the fundamental principle controlling the relationship
between employers and employees . . . . However, even under the common law, an employee
is protected from discharge in retaliation for attempting to exercise a statutory or
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constitutional right, or in violation of a well-defined public policy.”).
A Whistleblower Act claimant has the burden of proving the following four elements
to prevail on his or her statutory retaliatory discharge claim:
(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.
See Voss v. Shelter Mut. Ins. Co., 958 S.W.2d 342, 344 (Tenn. Ct. App. 1997). In this case,
the only element in dispute is element (4)—whether either Mr. Todd or Ms. Harris’s
employment was terminated solely for his or her refusal to participate in, or remain silent
about, the alleged illegal activity, including illegal budget changes, false claims,
misclassifications, and/or theft of grant monies.
In Guy, this Court noted that “under the [Whistleblower Act], the plaintiff must
demonstrate an exclusive causal relationship between his [or her] whistleblowing activity and
his [or her] subsequent discharge.” 79 S.W.3d at 535; see also Collins v. AmSouth Bank,
241 S.W.3d 879, 884 (Tenn. Ct. App. 2007) (observing that “the primary difference between
the common law and statutory [retaliatory discharge] claims is that, to benefit from statutory
protection, an employee must demonstrate that his or her refusal was the sole reason for his
or her discharge”) (emphasis in original); Darnall v. A+ Homecare, Inc., No. 01A01-9807-
CV0034, 1999 WL 346225, at *8 (Tenn. Ct. App. June 2, 1999) (Koch, J., concurring) (“The
General Assembly's choice of the term ‘solely’ means that an employee can prevail with a
Tenn. Code Ann. § 50-1-304 claim only if he or she can prove that his or her refusal to
participate in or to remain silent about illegal activities was the only reason for the
termination.”). The burden on plaintiff in this regard is high. As noted by the Tennessee
Supreme Court in Sykes v. Chattanooga Housing Auth., 343 S.W.3d 18 (Tenn. 2011):
By requiring a plaintiff employee to show that he or she was
“discharged or terminated solely for refusing to participate in, or
for refusing to remain silent about, illegal activities,” the
legislature has chosen to enact a stringent standard and set the
bar high for recovery under a retaliatory discharge claim
pursuant to the Whistleblower Act.
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Id. at 26–27.
As argued in their brief, Appellants contend that they have shown a prima facie case
for retaliatory discharge under the TPPA and, specifically, have demonstrated that retaliation
was the sole reason for the termination of their employment based upon two arguments.
First, Appellants contend that, because the decision not to reappoint them was close in time
to Appellants' refusal to remain silent about illegal activities, this demonstrates a causal
connection between the whistleblowing and the termination of their employment. Second,
Appellants contend that they have shown that the alleged legitimate reason for Appellants'
termination, i.e., problems within the department, is pretext for whistleblower retaliation.
We will to address each of these arguments in turn.
A. Causal Relationship based upon temporal proximity of termination of
employment to whistleblowing activities
As noted in Allen, close temporal proximity between a “complaint and a materially
adverse action” may be sufficient to establish causation, at least “for the purpose of stating
a prima facie case” of retaliation. Allen, 240 S.W.3d at 823. In his deposition, Mr. Todd
states that his first “whistleblowing” action was a letter, which he sent to the Office of the
Inspector General for the U.S. Department of Homeland Security on July 14, 2006. As noted
above, at about the same time, Ms. Harris contacted Mayor Wharton’s office to voice her
concerns. Ms. Harris also sent letters to outside agencies; however, it is undisputed that these
letters were sent anonymously and that she did not reveal her identity to these agencies until
after her employment ended.
According to Mayor Wharton’s testimony, he began to formulate the idea of replacing
the team at the SCDHS, including the Appellants, after meeting with the Homeland Security
Council in January of 2006:
Q [to Mayor Wharton]. [W]hat is the basis as to the reason why
[Mr. Todd and Ms. Harris’s employment was not] continued in
Shelby Government.
A. It was no big secret that the office [i.e., the SCDHS] was
having a number of difficulties . . . . One thing that does stick
out in my mind is that . . . there were a number of grants that
were about to expire, and the information had been
communicated to me that we didn’t really have any grants in
jeopardy and that no extensions are required.
And I was presiding over a meeting out at the [T]EMA
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one day and. . .one of the office[rs] stood up and said something
to the effect, you need to get an extension . . . and I just said. .
. . We’re losing faith through the State of Tennessee . . . .
But there’s just been a litany of difficulties with the
[SCDHS] from Bolden and then to the time that Mr. Todd was
in there, and it was just a matter of my concluding that the only
way I would get the same turnaround is to bring in somebody
who would just do a total makeover.
Mayor Wharton then testified that the problems within the SCDHS were cumulative
in that they built up over an extended period of time. However, Mayor Wharton testified
that, as a result of the meeting with TEMA, and beginning around February of 2006, he
decided to appoint the task force, headed by Ms. Lott, to correct the problems within the
SCDHS. The Appellants were not reappointed in August of 2006, which was immediately
before Mayor Wharton’s new term in office began. Concerning Appellants’ argument that
the termination of their employment was proximate to their whistleblowing activities, the
record clearly indicates that the decision not to reappoint Appellants was not spontaneous,
but was the result of Mayor Wharton’s goal of overhauling the department, which process
began much earlier that year, in January or February of 2006. Accordingly, the record does
not support Appellants’ contention that the decision to terminate their employment was made
in close proximity, or as a direct result, of their whistleblowing activities. Rather, the
decision, and timing of the termination, appears to be the culmination of several months of
planning and actions consistent with Mayor Wharton’s ultimate goal of a complete overhaul
of the department.
In addition, Appellants’ response to Appellee’s statement of undisputed facts in
support of their motion for summary judgment indicates that Mayor Wharton’s office did not
know about the whistleblowing activities until after the decision to terminate Appellants’
employment was made. In response to undisputed fact number 10, Appellants admit that the
decision not to reappoint them was made by Mayor Wharton on August 24, 2006, at
approximately 2:00 p.m. According to their response to statement of fact number 9, Mr.
Todd first informed Shelby County’s internal auditors, on August 24, 2006, that he had
reported alleged wrongdoing to the State. In his deposition, Mr. Tommy Cates, head of the
auditing department, testified that he received the auditors’ report within hours of its
completion, on August 24, 2006. In further response to factual statement number 9,
Appellants state that Mr. Cates prepared and delivered a report, which contained information
about Mr. Todd’s reporting of the alleged wrongdoing, to the office of then Shelby County
CAO Mr. Fowlkes the following day, i.e., August 25, 2006. Mr. Cates testifies that he left
the report with Mr. Fowlkes’s secretary; however, there is no indication in the record that Mr.
Fowlkes actually received the report that Mr. Cates delivered, or that he read it. However,
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even if we favor Appellants in reading this fact, as we must do at the summary judgment
stage, and assume that Mr. Fowlkes received Mr. Cates’s report on August 25, 2006 (which
is the earliest date he could have received it, according to Mr. Cates’s testimony), Appellants
have only established that Appellee was aware of the whistleblowing activity after Mr.
Theodore Fox, the then Shelby County Director of Public Works, had recommended that
Appellants not be reappointed, and only after Mayor Wharton had made the decision not to
reappoint them. In short, Appellants have presented no evidence from which we could
conclude that Mayor Wharton, or Messrs. Fowlkes or Fox knew, or could have known, about
Appellants’ whistleblowing activities before the auditors’ report was delivered to Mr.
Fowlkes’s office on August 25, 2006. As discussed above, under the TPPA, Appellants have
the burden to show an exclusive causal relationship between their reporting of alleged
wrongdoing and Mayor Wharton’s decision not to reappoint them. By Appellants’ own
responses to Appellee’s statement of undisputed facts, it is clear that Mayor Wharton did not
know about Appellants’ reporting before he made the decision not to reappoint them.
However, as noted above, Ms. Harris testified that she sent emails to Mayor Wharton’s
office. Despite the fact that these emails are not in our record, and despite the fact that there
is no indication as to when, or to whom, these emails were sent, at the summary judgment
stage, we must give Ms. Harris all reasonable inferences in her favor. Doing so, we must
conclude that the emails did provide some notice to someone on Mayor Wharton’s staff.
Even with this inference in Ms. Harris’s favor, she nonetheless has failed to show that any
correspondence with Mayor Wharton’s office supports a finding that knowledge of her
whistleblowing activities was the sole reason for the termination of her employment. We
now turn to specifically address that issue.
B. Causal connection based upon pretext
Even if Appellants’ could demonstrate that Mayor Wharton knew about the
whistleblowing activities prior to his decision not to reappoint Appellants, Appellants have,
nonetheless, failed to meet their burden to demonstrate that the alleged reason for the
termination of their employment, i.e., problems within the SCDHS, was pretext. In order to
state a prima facie case under the TPPA, Appellants must prove “an exclusive causal
relationship between [their] refusal to participate in or remain silent about illegal activities
and [the] termination [of their employment].” Franklin v. Swift v. Transp. Co., Inc., 210
S.W.3d 521, 528 (Tenn. Ct. App. 2006).
As discussed above, Mayor Wharton testified that, at a meeting with the Homeland
Security Council in January of 2006, he first became aware of several issues indicating that
the current SCDHS team, which included Appellants, was not functioning properly. Mayor
Wharton concluded that the team needed to be replaced and set about that task. Mayor
Wharton first appointed a task force to work on grants. As part of this task force, Ms. Harris
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was replaced in her function as grants supervisor. From the record, Mayor Wharton’s
decision was based upon concerns about administration of grants within the SCDHD, and the
lack of confidence in the department, as expressed by TEMA at the meeting referred to in
Mayor Wharton’s testimony, supra. Mayor Wharton testified that he, and members of his
administration, were concerned about Appellants’ overall performance and the imminent loss
of some $19 million in grant funding.
Once Appellee has articulated a legitimate, non-discriminatory reason for its decision
not to reappoint Appellants, the burden then shifts to Appellants to produce evidence that the
proferred reason is pretext. Allen, 240 S.W.3d at 823. We have reviewed the record, and
conclude that Appellants have not met this burden. When asked, in his deposition, who was
responsible for making the decision to not reappoint him, Mr. Todd testifies that: “I have no
idea who all was involved in that [decision].” Likewise, when Ms. Harris was asked whether
she had a witness who could testify that Mayor Wharton’s reason for not reappointing her
was because of her reporting illegal activity, Ms. Harris responded “No.” She further
admitted that she had no documentation, or personal knowledge, to show that Mayor
Wharton’s decision was based on her whistleblowing activities. In fact, and as noted above,
the record indicates that Ms. Harris’s reports were made anonymously until after she was not
reappointed. Based upon the record, Appellants’ have failed to meet their burden to produce
evidence to rebut the legitimate reason for the termination of their employment, i.e.,
problems within the SCDHD, and specifically to show that this reason was pretext.
In summary, to successfully shift the burden of production to the nonmoving party at
the summary judgment stage, Shelby County must either produce or identify evidence “that
affirmatively negates an essential element of the nonmoving party's claim or shows that the
nonmoving party cannot prove an essential element of the claim at trial.” Mills v. CSX
Transp., Inc., 300 S.W.3d 627, 631 (Tenn. 2009). To this end, Shelby County challenges
Appellants’ ability to establish the “sole causation” element of their claims. At trial, Mr.
Todd and Ms. Harris must show that Shelby County terminated their employment solely for
their refusal to participate in or remain silent about the alleged illegal activity. We have
carefully reviewed the evidence in the record, in the light most favorable to the nonmovants,
Mr. Todd and Ms. Harris, and we conclude that Shelby County has produced and/or
identified evidence that neither Mr. Todd nor Mr. Harris can establish the essential element
of sole causation. The undisputed evidence in the record establishes valid and legitimate
reasons for Shelby County to have terminated both Appellants’ employment. Thus, Shelby
County has successfully shifted the burden to Mr. Todd and Ms. Harris to demonstrate a
genuine issue of material fact regarding whether the decision to terminate their employment
was solely due to their protected whistleblowing activity. Neither Mr. Todd nor Ms. Harris
has produced or identified sufficient evidence to show an issue of material fact on this
challenging element of sole causation. Even viewing all the evidence in the light most
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favorable to Mr. Todd and Ms. Harris, a reasonable juror could not conclude that the sole
reason for the termination of Appellants’ employment was their refusal to participate in or
remain silent about the alleged illegal activities in this case. The trial court's summary
judgment in favor of Shelby County on Appellants’ TPPA claim is affirmed.
II. Tennessee Public Employees Political Freedom Act Claims
The Tennessee Public Employee Political Freedom Act, Tennessee Code Annotated
Section 8-50-603 (“PEPFA”), provides:
(a) It is unlawful for any public employer to discipline, threaten
to discipline or otherwise discriminate against an employee
because such employee exercised that employee's right to
communicate with an elected public official.
(b) If the court of competent jurisdiction determines that a
public employer has disciplined, threatened to discipline or
otherwise discriminated against an employee because such
employee exercised the rights provided by this part, such
employee shall be entitled to treble damages plus reasonable
attorney fees.
In interpreting this statute, this Court has noted that “[o]bviously, the word ‘because’
in T.C.A. §8-50-603(b) requires that the discriminatory actions of the public employer must
have resulted from the public employee’s communication with an elected officer.” Todd v.
Jackson, 213 S.W.3d 277, 280 (Tenn. Ct. App. 2006) (quoting Pewitt v. Buford, No. 01A01-
9501-CV-00025, 1995 WL 614327, at *5 (Tenn. Ct. App. Oct. 20, 1995).
From the record, it appears that Ms. Harris never communicated her concerns to an
elected official. Although Ms. Harris asserts that she emailed Mayor Wharton’s office, as
discussed above, there is no indication that the emails were sent directly to Mayor Wharton,
or that he ever read or knew about them. In addition, Ms. Harris admits in her deposition that
she had no direct contact with any elected official. Ms. Harris states that she did contact the
State of Tennessee Comptroller about alleged wrongdoing. However, as noted by Appellee
in its brief, the Tennessee Comptroller is not an elected official. Rather, the Comptroller is
appointed pursuant to Article 7 §3 of the Tennessee Constitution, stating that “[t]here shall
be a Treasurer or Treasurers and a Comptroller of the Treasury appointed for the State, by
the joint vote of both houses of the General Assembly. . . .” (emphasis added). As noted
above, Tennessee Code Annotated Section 8-50-603 prohibits retaliation for communication
with an elected public official. Because Ms. Harris has provided no evidence to suggest that
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she communicated with such elected official, she cannot sustain a cause of action under the
PEPFA.
Mr. Todd, on the other hand, does claim to have talked to then Shelby County
Commissioner John Willingham about his concerns. The only evidence of that conversation
is Mr. Todd’s own testimony. Taking Mr. Todd’s testimony as true, which we must do at the
summary judgment stage, and allowing that Mr. Todd did, in fact, discuss his concerns with
Commissioner Willingham, this fact, alone, is not sufficient to make out a prima facie case
under the PEPFA. As noted above, not only does the plaintiff have to show that there was
communication with an elected official, but the plaintiff also has the burden to show that the
retaliatory discharge was because of the communication with the elected official. In short,
there must be some evidence of a causal connection between the communication and the
termination of employment. Here, there is no evidence that the decision-maker, i.e., Mayor
Wharton, knew anything about Mr. Todd’s conversation with Commissioner Willingham.
In the absence of some evidence from which we could infer that Mayor Wharton knew, or
should have known, about Mr. Todd’s conversation with Commissioner Willingham, Mr.
Todd cannot sustain his PEPFA claim.
In their brief, Appellants argue that “there is nothing in the [PEPFA] statutory text or
case law interpreting the statute that requires a plaintiff who reported behavior to an elected
official to also prove that the elected official reported the conduct back to authorities.”
Although we concede that the plain language of the statute does not specifically state that a
prima facie element of a PEPFA claim is proof that the elected official reported the
whisleblowing activities, a plaintiff must, nonetheless, “show that the communication with
an elected official was a substantial or motivating factor in the discriminatory action taken
by the employer.” Gooch v. City of Pulaski, No. M2006-00451-COA-R3-CV, 2007 WL
969398, at *7 (Tenn. Ct. App. March 30, 2007). This is the shortfall in the instant case.
Ms. Harris has not shown that she ever talked to an elected official; Mr. Todd has not shown
that the conversation he had with Mr. Willingham had anything to do with Mayor Wharton’s
decision to terminate his employment. Accordingly, the trial court correctly dismissed the
Appellants’ PEPFA claims.
For the foregoing reasons, we affirm the order of the trial court. The case is remanded
for all further proceedings as may be necessary and are consistent with this opinion. Costs
of this appeal are assessed to the Appellants, John Todd, Cynthia Banks-Harris, and their
surety.
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_________________________________
J. STEVEN STAFFORD, JUDGE
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