Rickey Thompson v. State of Tennessee, Department of Correction ( 2020 )

03/31/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 6, 2019 Session
RICKEY THOMPSON v. STATE OF TENNESSEE,
DEPARTMENT OF CORRECTION
Appeal from the Circuit Court for Davidson County
No. 16-C-1970 Thomas W. Brothers, Judge
No. M2018-02262-COA-R3-CV
This appeal concerns the court’s summary judgment dismissal of the plaintiff’s age
discrimination and retaliatory discharge claims against the State of Tennessee,
Department of Correction. We affirm the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which RICHARD H.
DINKINS and W. NEAL MCBRAYER, JJ., joined.
R. Patrick Parker, Henderson, Tennessee, for the appellant, Rickey Thompson.
Herbert H. Slatery, III, Attorney General & Reporter; Andree Sophia Blumstein, Solicitor
General; and Rachel A. Newton, Assistant Attorney General, for the appellee, State of
Tennessee, Department of Correction.
OPINION
I. BACKGROUND
Rickey Thompson (“Plaintiff”) was first hired in 1999 as a correctional officer for
the State of Tennessee, Department of Correction (“TDOC”). He then transferred to the
Correctional Academy as a Correctional Academy Instructor I and was later promoted to
Instructor 2. In 2016, all Instructor 2 positions were eliminated due to a Reduction in
Force (“RIF”) as part of the State’s Voluntary Buyout Plan. The TDOC then created two
new Instructor I positions as part of the organizational restructuring. While still
employed as an Instructor 2, Plaintiff and four other candidates applied for the two newly
created positions. Each candidate participated in two rounds of interviews. Plaintiff was
not hired for the position. One position was awarded to someone in his 30s, while the
other position was awarded to someone slightly older than Plaintiff, who was 53 years
old at that time. His position was terminated on June 30, 2016.
Plaintiff filed suit, alleging age discrimination under the Tennessee Human Rights
Act (“THRA”).1 He also brought a retaliatory discharge claim under the Tennessee
Public Protection Act (“TPPA”), alleging that he was terminated for his refusal to violate
two internal policies, one of which pertained to written examination requirements for
employee firearms training and the other of which pertained to vision requirements for
new correctional officers. He explained that he was instructed to ensure that everyone
who attended the firearms program qualified for service by “any means necessary,”
despite his or her failure to fulfill the mandatory minimum requirements.
The TDOC moved for summary judgment dismissal. In support of its motion, the
TDOC submitted an affidavit, inter alia, in which Ronald Whitmore, the Superintendent
of the TDOC Academy, attested that the TDOC eliminated 11 positions, including 4
Instructor 2 positions, as part of a RIF at the Tennessee Correctional Academy. He
continued,
The four (4) Instructor 2 positions were the only Instructor 2 positions at
the Academy. The Instructor 2 positions were reclassified to Instructor 1
positions to eliminate redundancy in supervisory duties, which is the same
reason the Training Director 1 position was eliminated. . . . Only two of the
positions that were reclassified from Instructor 2 to Instructor 1 were filled
while Plaintiff was employed by [the] TDOC.
After learning that all the Instructor 2 positions at the Academy would be
eliminated as a result of the RIF that occurred due to the State’s Voluntary
Buyout Plan, one of the Instructor 2s, Charles “Michael” Long, elected to
take the Voluntary Buyout. Another, Sean Lenart, found employment
outside of [the] TDOC. Another, Anthony Roark, was hired as an
Instructor 1 after being required to apply and interview for the position.
Mr. Whitmore further attested that none of his actions regarding the terms of Plaintiff’s
employment were based upon age and that he never asked Plaintiff to violate any state or
federal law or civil or criminal code or to remain silent about any violation.
Plaintiff claimed age discrimination in both his separation from his employment
and in the failure to hire him as an Instructor 1. He alleged that he received age-related
1
Plaintiff also brought a hostile work environment claim based upon his age that was ultimately
dismissed by the trial court. He does not appeal the dismissal of this claim.
-2-
comments related to his job performance in 2011. He claimed that his supervisor also
attempted to dissuade him from even applying for the Instructor 2 position in 2016. He
was informed after the interviewing process that he had not received the scores expected
of him. The TDOC countered that Plaintiff received the lowest average ranking from the
two interview panels and that one of the two men hired in his stead was older than him.
Relative to his retaliatory discharge claim, Plaintiff alleged that he was told to
violate regulations concerning firearms qualifications. He was instructed to ensure that
everyone who came through the firearms program qualified “by any means necessary” or
that the TDOC would find someone who would. He was also told that he was not a
“team player” by not ensuring that all officers received their firearms qualification even
though they failed to meet minimum standards. Two months prior to his termination, he
was removed from the instructor list, relocated, and told to turn in his equipment. The
TDOC countered that dismissal of his retaliatory discharge claim was appropriate
because Plaintiff failed to show that he refused to participate in or remain silent about any
“illegal activities” when his claim was based upon an internal policy. The TDOC further
claimed that Plaintiff failed to show a causal connection between the alleged “protected
conduct” and his termination.
The trial court granted summary judgment in favor of the TDOC on the age
discrimination claims, finding that Plaintiff’s evidence was insufficient to establish that
age was a determining factor in his termination or in the TDOC’s failure to hire him for
the new position when one of the positions was filled by someone older than him. The
court also granted summary judgment on Plaintiff’s retaliatory discharge claim, finding
that Plaintiff failed to establish that he refused to participate in or remain silent about
illegal activities. The court further found that Plaintiff had also failed to establish that he
informed someone other than his employer of the alleged illegal activities, a necessary
element to establish a retaliatory discharge claim. Plaintiff appeals the summary
judgment dismissal of his discrimination and retaliatory discharge claims.
II. ISSUES
The issues on appeal are as follows:
A. Whether the court erred in granting summary judgment dismissal on
the age discrimination claims.
B. Whether the court erred in granting summary judgment dismissal on
the retaliatory discharge claim.
-3-
III. STANDARD OF REVIEW
The appropriate summary judgment standard to be applied is as follows:
[W]hen 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.
Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015).
Summary judgment “shall be rendered forthwith if 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.” Rye, 477 S.W.3d at 250 (citations omitted). “In
doing so, we make a fresh determination of whether the requirements of [Rule 56] have
been satisfied.” Id. (citations omitted). We 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).
IV. DISCUSSION
A.
The THRA provides that it is a discriminatory practice for an employer to “[f]ail
or refuse to hire or discharge any person or otherwise to discriminate against an
individual with respect to compensation, terms, conditions or privileges of employment
because of such individual’s . . . age.” Tenn. Code Ann. § 4-21-401(a)(1). Plaintiff
claims under the THRA that the TDOC discriminated against him on the basis of his age
both when it separated him from employment and when it failed to hire him as an
Instructor 1. He claims that his evidence was sufficient to establish his claim when he
was the only one affected by the RIF and when the older candidate who was allegedly
hired in his stead was not specifically hired to fill the Instructor I position. The TDOC
responds that the record establishes that the RIF affected all four of the Instructor 2
positions and that Plaintiff was simply the last employee remaining after selections were
made for the new positions. The TDOC argues that Plaintiff also cannot establish a
-4-
discriminatory failure to hire claim when the one of the two positions available was filled
by an employee older than him.
When there is no direct evidence of age discriminatory termination, an employee
must first establish a prima facie case of discrimination by proving that “(1) he was a
member of the protected class;2 (2) he was subjected to [an] adverse employment action;
(3) he was qualified for the position; and (4) he was replaced by a younger person,”
namely someone outside of the protected class. Brenner v. Textron Aerostructures, A
Division of Textron Inc., 874 S.W.2d 579, 584 (Tenn. Ct. App. 1993) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). To sustain a prima facie case of
discriminatory failure to hire, an employee must establish (1) that he was a member of a
protected class of applicants age 40 years or older; (2) that he applied for and was
qualified for the position in question; (3) that he was considered for and denied the
position; and (4) he was rejected in favor of a substantially younger person with similar
qualifications. Trudeau v. Dep’t of Labor and Workforce Dev., No. W2003-01920-COA-
R3-CV, 2004 WL 2439404, at *3-4 (Tenn. Ct. App. Oct. 26, 2004).
If an employee has established a prima facie case of age discrimination in either
context, the burden of production shifts to the employer to “articulate a legitimate non-
discriminatory business reason for the challenged employment action.” Dennis v. White
Way Cleaners, L.P., 119 S.W.3d 688, 694 (Tenn. Ct. App. 2003) (citing McDonnell
Douglas, 411 U.S. at 802). Once an employer has articulated such a reason, “then the
burden shifts again to the [employee] to present some evidence that the [employer]’s
reasons are pretextual.” Id. (citing Versa v. Policy Studies, Inc., 45 S.W.3d 575 (Tenn.
Ct. App. 2000)). In establishing that the reason was pretextual, the employee may show
that “the employer was more likely than not motivated by a discriminatory reason” or that
“the employer’s explanation was not credible.” Barnes v. Goodyear Tire and Rubber
Co., 48 S.W.3d 698, 708 (Tenn. 2000), abrogated on other grounds by Gossett v. Tractor
Supply Co., Inc., 320 S.W.3d 777 (Tenn. 2010).
Despite the burden-shifting framework, the ultimate burden of persuasion remains
with the employee-plaintiff. Williams v. City of Burns, 465 S.W.3d 96, 113 (Tenn. 2015).
The employee-plaintiff also has an even higher burden when the termination at issue is a
result of a RIF. See generally Brenner, 874 S.W.2d at 584-85 (recognizing a higher
burden placed upon plaintiffs in RIF age discrimination cases). Here, Plaintiff cannot
establish that age was a determining factor in his termination or in the TDOC’s failure to
hire him when one of the two positions was filled with someone older than Plaintiff. We
affirm the trial court on this issue.
2
In cases of age discrimination, the protected class consists of “individuals who are at least forty (40)
years of age.” Tenn. Code Ann. § 4-21-101(b).
-5-
B.
The TPPA provides that “[n]o employee shall be discharged or terminated solely
for refusing to participate in, or refusing to remain silent about, illegal activities.” Tenn.
Code Ann. § 50-1-304(b). The TPPA defines “illegal activities” 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.” Tenn. Code Ann. § 50-1-
304(a)(3). To establish a retaliatory discharge claim, a plaintiff must demonstrate “[1]
that he engaged in conduct protected by the TPPA, [2] that the protected conduct was
known to the defendant, [3] that the defendant thereafter discharged him, and [4] that
there was the requisite causal connection between the protected conduct and the
discharge.” Williams v. City of Burns, 465 S.W.3d 96, 113 (Tenn. 2015). The plaintiff
must also establish that he reported the alleged illegal activity to someone other than the
employer who is allegedly in violation of the law. Haynes v. Formac Stables, Inc., 463
S.W.3d 34, 40-41 (Tenn. 2015).
Plaintiff argues that he presented sufficient evidence to establish that he was fired
for his refusal to violate administrative policies and procedures promulgated by the
TDOC. Plaintiff reasons that the TDOC is instructed by the legislature to promulgate
such policies and procedures, thereby establishing that any violation of the same is
tantamount to a violation of a legislative statute. The TDOC counters that internal TDOC
policies are not statutes or regulations as contemplated in the TPPA statute. Further,
Plaintiff failed to establish a causal connection between any protected conduct and his
termination. The TDOC notes that Plaintiff’s alleged refusal occurred in January 2015,
disproving any connection to his termination in June 2016 as too remote in time.
Here, Plaintiff has not provided any evidence establishing that he reported the
alleged illegal activity to outside officials or regulators. We also agree with the TDOC
that his refusal to violate internal policies was too remote in time to establish the requisite
causal connection to his termination as a result of the RIF. In consideration of the
foregoing, we affirm the court’s summary judgment dismissal of Plaintiff’s age
discrimination and retaliatory discharge claims.
V. CONCLUSION
We affirm the decision of the trial court and remand for such further proceedings
as may be necessary. Costs of the appeal are taxed to the appellant, Rickey Thompson.
_________________________________
JOHN W. McCLARTY, JUDGE
-6-