Gary M. Gossett v. Tractor Supply Company

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 11, 2010 Session
GARY M. GOSSETT v. TRACTOR SUPPLY COMPANY, INC.
Appeal by Permission from the Court of Appeals, Middle Section
Chancery Court for Davidson County
No. 04-1484-IV Richard H. Dinkins, Chancellor
No. M2007-02530-SC-R11-CV - Filed September 20, 2010
The employee brought an action for common law retaliatory discharge against his employer
for refusal to participate in an allegedly illegal activity. The employer moved for summary
judgment, presenting evidence of a legitimate reason for the employee’s discharge pursuant
to the framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The employer also argued that summary judgment was warranted pursuant to Collins v.
AmSouth Bank, 241 S.W.3d 879 (Tenn. Ct. App. 2007), because the undisputed facts
showed that the employee did not report the alleged illegality. The trial court granted
summary judgment, which the Court of Appeals reversed. We hold that the McDonnell
Douglas framework is inapplicable at the summary judgment stage because it is incompatible
with Tennessee summary judgment jurisprudence. We also hold that an employee alleging
retaliatory discharge for refusal to participate in an illegal activity need not report the
illegality. We therefore affirm the judgment of the Court of Appeals.
Tenn. R. App. P. 11 Appeal by Permission;
Judgment of the Court of Appeals Affirmed
J ANICE M. H OLDER, C.J., delivered the opinion of the Court, in which G ARY R. W ADE, and
S HARON G. L EE, JJ., joined. C ORNELIA A. C LARK, J., filed a separate opinion dissenting in
part and concurring in the judgment, in which W ILLIAM C. K OCH, J R., J. joined.
Douglas Ray Pierce and James Andrew Farmer, Nashville, Tennessee, for the appellant,
Tractor Supply Company, Inc.
Wade Bonham Cowan, Nashville, Tennessee, for the appellee, Gary M. Gossett.
OPINION
I. Facts and Procedure
Defendant Tractor Supply Company, Inc., (Tractor Supply) employed Gary Gossett
as an “Inventory Control Manager” in its General Accounting Department until his discharge.
As Inventory Control Manager, Mr. Gossett prepared the inventory reserve analysis, which
calculates the amount of money Tractor Supply must reserve each fiscal quarter to account
for excess or slow-moving inventory. Each dollar reserved proportionately decreases Tractor
Supply’s earnings. After completing the inventory reserve analysis, Mr. Gossett delivered
it to his immediate supervisor, Vice President-Controller David Lewis, for use in Tractor
Supply’s quarterly earnings report to the Securities & Exchange Commission. The process
was overseen by Tractor Supply’s Chief Financial Officer, Calvin Massmann.
According to Mr. Gossett, during the first week of October 2003, Mr. Massmann
instructed him to remove products from the inventory reserve. Mr. Gossett contends that this
action would have artificially increased the quarterly earnings statement in violation of the
Securities Exchange Act of 1934 and related federal securities regulations. Mr. Gossett
specifically alleges that Mr. Massmann “wanted [Mr. Gossett] to look at all the various
categories that made up the Company’s inventory mix and find creative ways to remove
products that seemed to be creating the greatest need for additional reserves.” Mr. Gossett
states that he refused to participate in the allegedly illegal activity, which displeased Mr.
Massmann, and submitted an accurate inventory reserve analysis to Mr. Lewis. On
November 7, 2003, after consulting with Mr. Massmann and Tractor Supply’s human
resource manager, Mr. Lewis discharged Mr. Gossett.
Mr. Gossett brought an action for common law retaliatory discharge based on a
violation of public policy. He specifically alleged that Tractor Supply discharged him for
refusing to participate in Mr. Massmann’s allegedly illegal activity. Tractor Supply moved
for summary judgment, arguing that Mr. Gossett could not prove the essential causation
element of his claim at trial. The trial court found that the case presented genuine issues of
material fact, denied Tractor Supply’s motion, and set a date for trial.
Six weeks before trial, however, Tractor Supply filed a motion requesting that the trial
court reconsider and revise its order denying summary judgment in light of Collins v.
AmSouth Bank, 241 S.W.3d 879 (Tenn. Ct. App. 2007). In reconsidering its order, the trial
court observed that, pursuant to Collins, “reporting the alleged illegal activity is an essential
element of a cause of action for retaliatory discharge.” The trial court granted summary
judgment because it was undisputed that Mr. Gossett did not report Mr. Massmann’s
allegedly illegal activity to anyone.
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The Court of Appeals reversed the grant of summary judgment. We granted Tractor
Supply’s application for permission to appeal.
II. Analysis
The issue before us is whether Tractor Supply is entitled to summary judgment as to
Mr. Gossett’s retaliatory discharge claim. The granting or denying of summary judgment is
a question of law, which we review de novo. Blair v. W. Town Mall, 130 S.W.3d 761, 763
(Tenn. 2004).
A.
Tractor Supply argues that summary judgment is warranted when the motion for
summary judgment is analyzed pursuant to the framework announced in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Our analysis of this argument requires that we first
describe the McDonnell Douglas framework, this Court’s similar but distinct framework
adopted in Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993), and the
frameworks’ application in Tennessee.
In McDonnell Douglas, the United States Supreme Court set forth for use at trial 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, 252
(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,
714-15 (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. Tennessee
courts have applied this evidentiary framework to statutory employment discrimination and
retaliation claims. See e.g., Allen v. McPhee, 240 S.W.3d 803, 819-23 (Tenn. 2007); Barnes
v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 708-09 (Tenn. 2000).
For common law retaliatory discharge cases such as the one before us, this Court has
adopted an analysis similar to but distinct from the McDonnell Douglas framework. At trial,
the employee has the burden of proving the four elements of the claim:
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(1) that an employment-at-will relationship existed;
(2) that the employee was discharged;
(3) that the reason for the discharge was that the employee attempted to
exercise a statutory or constitutional right, or for any other reason which
violates a clear public policy evidenced by an unambiguous constitutional,
statutory, or regulatory provision; and
(4) that a substantial factor in the employer’s decision to discharge the
employee was the employee’s exercise of protected rights or compliance with
clear public policy.
Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 862 (Tenn. 2002) (citations omitted).
Proof of a causal link between the employee’s exercise of a protected right or compliance
with clear public policy and the employer’s decision to discharge the employee then
“imposes upon the employer the burden of showing a legitimate, non-pretextual reason for
the employee’s discharge.” Anderson, 857 S.W.2d at 559. No opinion of this Court
addressing common law retaliatory discharge, however, has described how an employee must
respond to the employer’s proffered reason.1 Nor have we been called on, until now, to
demonstrate how the employer’s burden of showing a legitimate reason for discharge applies
at the summary judgment stage.2
1
We have addressed the common law retaliatory discharge cause of action in twelve opinions. Guy
v. Mut. of Omaha Ins. Co., 79 S.W.3d 528 (Tenn. 2002); Crews, 78 S.W.3d 852; Fahrner v. SW Mfg., Inc.,
48 S.W.3d 141 (Tenn. 2001); Stein v. Davidson Hotel Co., 945 S.W.2d 714 (Tenn. 1997); Coffey v. Fayette
Tubular Prods., 929 S.W.2d 326 (Tenn. 1996); Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d
646 (Tenn. 1995); Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822 (Tenn. 1994); Anderson, 857
S.W.2d 555; Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992); Harney v. Meadowbrook Nursing
Ctr., 784 S.W.2d 921 (Tenn. 1990); Chism v. Mid-South Milling Co., 762 S.W.2d 552 (Tenn. 1988); Clanton
v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn. 1984).
2
Guy v. Mutual of Omaha Insurance Co., Anderson v. Standard Register Co., Harney v.
Meadowbrook Nursing Center, and Chism v. Mid-South Milling Co. addressed motions for summary
judgment, but all four opinions disposed of the motions without addressing how an employee must respond
after an employer articulates a legitimate reason for the discharge. Anderson v. Standard Register Co.
provides examples of legitimate, non-pretextual reasons, as the separate opinion correctly observes.
However, the Court ultimately granted summary judgment in Anderson because the employee failed to show
a prima facie case of retaliatory discharge, 857 S.W.2d at 559, and the Court therefore did not apply any of
the provided examples of legitimate, non-pretexutal reasons.
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B.
This case presents us with an opportunity to consider the continued viability of the
McDonnell Douglas and the Anderson frameworks (collectively the McDonnell Douglas
framework) at the summary judgment stage. We therefore review the McDonnell Douglas
framework in the context of Tennessee summary judgment law, particularly in light of our
recent clarification of summary judgment in Hannan v. Alltel Publishing Co., 270 S.W.3d
1, 8-9 (Tenn. 2008).
Summary judgment operates to dispose of a case only when it presents no genuine
issue of material fact and when the moving party is entitled to judgment as a matter of law.
Tenn. R. Civ. P. 56.04. Rule 56 therefore precludes trial courts from deciding issues of
material fact in ruling on a motion for summary judgment. Mills v. CSX Transp., Inc., 300
S.W.3d 627, 631 (Tenn. 2009). To show that a case presents no genuine issue of material
fact, a party moving for summary judgment must produce evidence or refer to evidence in
the record “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.”
Id. (citing Hannan, 270 S.W.3d at 8-9). “To affirmatively negate an essential element of the
nonmoving party’s claim, [the moving party] must point to evidence that tends to disprove
a material factual allegation made by the nonmoving party.” Id. (citing Martin v. Norfolk S.
Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008)). If the moving party fails to satisfy this burden
of production, summary judgment is not warranted. Id.
Evidence satisfying an employer’s burden of production pursuant to the McDonnell
Douglas framework does not necessarily demonstrate that there is no genuine issue of
material fact. The McDonnell Douglas framework requires only that an employer offer
evidence establishing a legitimate alternative to the reason for discharge alleged by the
employee. Burdine, 450 U.S. at 254. A legitimate reason for discharge, however, is not
always mutually exclusive of a discriminatory or retaliatory motive and thus does not
preclude the possibility that a discriminatory or retaliatory motive played a role in the
discharge decision. Cf. Anderson, 857 S.W.2d at 558 (adopting the “substantial factor” test
that an employee need only show a protected action “constituted an important or significant
motivating factor for the discharge,” not the exclusive or determinative factor, to establish
a prima facie retaliatory discharge claim). Indeed, Title VII of the Civil Rights Act
recognizes that an adverse employment action may be the result of both a legitimate reason
and a discriminatory motive. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 94-95 (2003).
Furthermore, evidence showing a legitimate reason for discharge can satisfy the requirements
of the McDonnell Douglas framework without tending to disprove any factual allegation by
the employee. An employer therefore may meet its burden of production pursuant to
McDonnell Douglas without satisfying the burden of production set forth in Tennessee Rule
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of Civil Procedure 56.04 for a party moving for summary judgment. See, e.g., Mills, 300
S.W.3d at 631; Martin, 271 S.W.3d at 83; Hannan, 270 S.W.3d at 5; Staples v. CBL &
Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); McCarley v. W. Quality Food Serv., 960
S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993).
The facts of this case illustrate why evidence of a legitimate reason for discharge does
not necessarily show that there is no genuine issue of material fact. In support of its motion
for summary judgment, Tractor Supply points to a deposition by Mr. Lewis in which he states
that he discharged Mr. Gossett to reduce Tractor Supply’s workforce. This reason satisfies
Tractor Supply’s burden of production pursuant to the McDonnell Douglas framework. See,
e.g., Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990). Mr. Lewis’s statements
show that reducing Tractor Supply’s work force was one reason for discharging Mr. Gossett.
Mr. Lewis’s statements do not show, however, that reducing its work force was the exclusive
reason for discharging Mr. Gossett. Mr. Lewis’s statements do not show an absence of a
retaliatory motive. Nor do Mr. Lewis’s statements tend to disprove any of Mr. Gossett’s
factual allegations. Even if we take Mr. Lewis’s statements as true, there remains a question
of fact as to whether the retaliatory motive alleged by Mr. Gossett amounted to a substantial
factor in Tractor Supply’s discharge decision. See Guy, 79 S.W.3d at 525. Tractor Supply
therefore has satisfied its burden of production pursuant to the McDonnell Douglas
framework without satisfying its burden of production for summary judgment. See Hannan,
270 S.W.3d at 8-9.
Furthermore, when applied at the summary judgment stage, the shifting burdens of
the McDonnell Douglas framework obfuscate the trial court’s summary judgment analysis.
The McDonnell Douglas framework “is intended to progressively sharpen the inquiry into
the elusive factual question of intentional discrimination” or retaliation. Burdine, 450 U.S.
at 254 n.8. Although such inquiry is particularly appropriate at trial, it is ill-suited for the
purpose of determining whether “there is no genuine issue as to any material fact.” Tenn.
R. Civ. P. 56.04. The burden-shifting analysis explained in Hannan, for example, “can be
an important tool in deciding whether summary judgment is appropriate,” Mills, 300 S.W.3d
at 634, because it specifically operates to show that there is no genuine issue of material fact
as to an essential element. See id. at 631. In contrast, the McDonnell Douglas framework
is a tool that trial courts use “to evaluate the evidence in light of common experience as it
bears on the critical question of discrimination” or retaliation. Aikens, 460 U.S. at 715
(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). Instead of
demonstrating the absence of any genuine issue of material fact, the framework focuses on
the “sensitive and difficult” factual question of whether an employer’s decision to discharge
an employee was discriminatory or retaliatory. Id. at 716.
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 Because of this difference, the inquiries required by the McDonnell Douglas
framework may result in trial courts disposing of factual questions on summary judgment.
This unintended result is particularly obvious when a court is assessing whether the
employer’s proffered reason for an adverse employment action is pretextual. In addressing
the issue of pretext, a court may fail to consider the facts alleged by the employee to show
a prima facie case. As explained by Judge Tymkovich of the United States Court of Appeals
for the Tenth Circuit, “the compartmentalization of evidence causes courts to put on blinders,
looking at categories of evidence narrowly while the totality of the evidence may point to
discrimination.” Timothy M. Tymkovich, The Problem with Pretext, 85 Denv. U. L. Rev.
503, 519 (2008); see Wells v. Colo. Dept. of Transp., 325 F.3d 1205, 1225 (10th Cir. 2003)
(Hartz, J., concurring). When focusing solely on whether the employee showed a genuine
issue of material fact regarding the employer’s proffered reason, a court may overlook the
employee’s evidence establishing the prima facie case. This oversight causes a court to
contravene our instruction that evidence must be construed in a light most favorable to the
employee as the nonmoving party, see Martin, 271 S.W.3d at 84, and can result in an
improper grant of summary judgment.
In Allen v. McPhee, for example, this Court separated the evidence supporting the
employee’s prima facie case, close temporal proximity, from our consideration of whether
the employee presented evidence of pretext. See 240 S.W.3d at 823. The matter was before
us on the employee’s retaliation claim under the Tennessee Human Rights Act. Applying the
McDonnell Douglas framework, we first held that a reasonable jury could conclude that the
employee, Allen, established a prima facie case of retaliation. We then stated that her
employer “is entitled to summary judgment if it can articulate a legitimate, non-
discriminatory reason for transferring Allen and if Allen is unable to present evidence that
raises a genuine dispute over whether the proffered reason is pretextual.” Id. (citing Young
v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006)). The employer “contend[ed] that it
reassigned Allen . . . to protect her from further harassment” from her supervisor, whom
Allen had reported for sexual harassment. Id. In granting summary judgment, we held “that
Allen has failed to demonstrate the existence of a genuine issue of material fact regarding
[her employer’s] motivation for the reassignment.” Id.
Without the McDonnell Douglas framework, our summary judgment analysis in Allen
would have reached a different outcome. Under well-established law, a court considering
a summary judgment motion “must take the strongest legitimate view of the evidence in
favor of the nonmoving party, allow all reasonable inferences in favor of that party, and
discard all countervailing evidence.” Blair, 130 S.W.3d at 768 (quoting Byrd, 847 S.W.2d
210-11). Summary judgment is warranted if the facts and inferences from those facts “permit
a reasonable person to reach only one conclusion.” Staples, 15 S.W.3d at 89. When we
discard the countervailing evidence that Allen’s employer reassigned her to protect her from
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further harassment, the record in Allen v. McPhee showed that Allen was reassigned shortly
after reporting that her supervisor had sexually harassed her. From this fact and reasonable
inferences from this fact construed in favor of Allen, a reasonable person can reach more
than one conclusion as to whether the employer transferred Allen in retaliation. Summary
judgment therefore was inappropriate. However, the parties in Allen did not question the
applicability of the McDonnell Douglas framework at the summary judgment stage in
Tennessee, and we were not called on to consider its continued viability. Our reaffirmation
of longstanding Tennessee law on summary judgment, however, convinces us that our
application of the McDonnell Douglas framework in Allen skewed our summary judgment
analysis in favor of the employer.
As Allen demonstrates, applying the McDonnell Douglas framework at the summary
judgment stage can result in the grant of a summary judgment despite the presence of
genuine issues of material fact. Ironically, the McDonnell Douglas framework was not
designed to be an obstacle to trial for the employee. “The shifting burdens of proof set forth
in McDonnell Douglas are designed to assure that the ‘[employee] has his day in court
despite the unavailability of direct evidence.’” Trans World Airlines, Inc. v. Thurston, 469
U.S. 111, 121 (1985) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979)).
Furthermore, the McDonnell Douglas framework was designed to permit the trier of
fact to better evaluate the evidence as to whether the employer was motivated by a
discriminatory or retaliatory intent, see, e.g., Aikens, 460 U.S. 711, 715 (1983), not to
remove genuine issues of material fact from a trier of fact. Our decision therefore does not,
as the separate opinion argues, make obtaining summary judgment “needlessly more
difficult” in employment discrimination and retaliation cases. Rather, it makes summary
judgment available equally to all litigants.
Based on the foregoing reasons, we hold that the McDonnell Douglas framework is
inapplicable at the summary judgment stage because it is incompatible with Tennessee
summary judgment jurisprudence.3
3
While opinions of federal intermediate appellate courts are only persuasive authority and not
binding on us, see Leggett v. Duke Energy Corp., 308 S.W.3d 843, 871 (Tenn. 2010), we observe that the
McDonnell Douglas framework has been the subject of much confusion and criticism in the federal circuit
courts of appeals. See e.g., Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1167 (10th Cir. 2007) (Hartz, J.,
concurring) (“I continue to believe that we should not apply the framework of McDonnell Douglas . . . to
review a summary judgment when the existence of a prima facie case is not disputed. . . . Applying that
framework is inconsistent with Supreme Court authority, adds unnecessary complexity to the analysis, and
is too likely to cause us to reach a result contrary to what we would decide if we focused on ‘the ultimate
question of discrimination vel non.’” (citations omitted)); Wright v. Murray Guard, Inc., 455 F.3d 702,
(continued...)
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C.
In light of the above analysis, we find the separate opinion’s additional arguments for
retaining the McDonnell Douglas framework at the summary judgment stage to be
unpersuasive. We expect that our holding today will engender less uncertainty than retaining
the McDonnell Douglas framework because our holding allows courts to conduct the same
summary judgment analysis in all cases. We also disagree that removing the McDonnell
Douglas framework from the summary judgment stage will “sharply reduce[] the quantum
of proof that a plaintiff needs to survive summary judgment,” as the separate opinion
contends. A plaintiff requires no proof to survive summary judgment unless the defendant
moving for summary judgment first shows there is no genuine issue as to any material fact
on an essential element, in which case all plaintiffs share the same burden of production to
show a genuine issue of material fact as to that element. Martin, 271 S.W.3d at 84; Hannan,
270 S.W.3d at 5. Removing the McDonnell Douglas framework from the summary judgment
stage instead requires defendants seeking summary judgment in discrimination and retaliation
claims to produce evidence in accordance with Tennessee Rule of Civil Procedure 56 and
longstanding Tennessee law, like all other litigants. See e.g., Mills, 300 S.W.3d at 631.
We also are undeterred by the separate opinion’s caution that removing the
McDonnell Douglas framework at the summary judgment stage “may ultimately impact the
3
(...continued)
716-21 (6th Cir. 2006) (Moore, J., concurring) (concluding that the McDonnell Douglas framework is “ill
suited to the analysis of mixed-motive claims” at summary judgment and stating that “[i]nquiries regarding
what actually motivated an employer’s decision are very fact intensive and thus will generally be difficult
to determine at the summary judgment stage”); Griffith v. City of Des Moines, 387 F.3d 733, 746-48 (8th
Cir. 2004) (Magnuson, J., sitting by designation, concurring specially) (stating that “the Supreme Court has
gradually chiseled McDonnell Douglas away from its original failing framework to an analysis that still fails
to give effect to the language of the Civil Rights Act,” and opining that it should not be used to analyze Title
VII claims at trial or at summary judgment); Liu v. Amway Corp., 347 F.3d 1125, 1140 n.6 (9th Cir. 2003)
(Pregerson, J., dissenting in part) (“‘[T]he process dictated by the Civil Rights Act of 1991 [in § 2000e-2(m)]
is more useful than the analysis required by McDonnell Douglas.’” (quoting Dare v. Wal-Mart Stores, Inc.,
267 F. Supp. 2d 987, 991 (D. Minn. 2003))); Dunaway v. Int’l Bhd. of Teamsters, 310 F.3d 758, 762-63
(D.C. Cir. 2002) (stating that in a summary judgment motion on employee’s claim of employment
discrimination in which an employer has articulated a legitimate reason for the adverse employment action,
“the proper question now is whether the employer unlawfully discriminated against the plaintiff,” not
pretext); Tymkovich, supra, at 505, 529 (“[T]his focus on pretext has shifted the emphasis of an employment
discrimination case away from the ultimate issue of whether the employer discriminated against the
complaining employee,” and “it may now be time to replace the framework with a simpler, more direct
method of determining the question of discrimination.”). For an example of the current state of the
McDonnell Douglas framework in federal courts, White v. Baxter Healthcare Corp. provides a survey of the
“widely differing approaches to the question of how to analyze summary judgment challenges in Title VII
mixed-motive cases” among the federal courts of appeals. 533 F.3d 381, 398-99 (6th Cir. 2008)
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viability of the framework at trial.” The separate opinion states that the reasoning behind our
decision may undercut “an employer’s motion for directed verdict at the conclusion of the
proof, based on uncontradicted evidence that the employee was discharged for a legitimate,
non-pretextual reason.” We disagree.
While motions for summary judgment and directed verdict are considered in the same
manner, Blair, 130 S.W.3d at 768, a court’s grant of summary judgment must be more
deliberate because it occurs before the nonmoving party has had the opportunity to present
all evidence at trial. Mills, 300 S.W.3d at 632 n.3 (citing Hamrick v. Spring City Motor Co.,
708 S.W.2d 383, 389 (Tenn. 1986)). In contrast, when an employer moves for directed
verdict, the employee has had the opportunity to present his or her case in full. See Tenn. R.
Civ. P. 50.01. “Uncontradicted evidence that the employee was discharged for a legitimate,
non-pretextual reason” at the directed verdict stage shows that the employee did not present
any proof at trial of a retaliatory reason for the discharge. The employer therefore would be
entitled to directed verdict because the strongest legitimate view of these facts in favor of the
employee, with all evidence construed in the employee’s favor and all countervailing
evidence discarded, permits a reasonable person to reach only one conclusion on the essential
causation element. See Johnson v. Tenn. Farmers Mut. Ins. Co., 205 S.W.3d 365, 370 (Tenn.
2006).
Additionally, the separate opinion’s concern reflects confusion about our holding. As
the United States Supreme Court explained in Aikens, evidence of a legitimate reason for the
discharge, combined with the employee’s evidence of a prima facie case, generally presents
a question of fact for the factfinder. 460 U.S. at 715 (quoting Burdine, 450 U.S. at 253).
Therefore, an employer that has satisfied its burden of production for the McDonnell Douglas
framework likely has not satisfied its burden of production for summary judgment.
However, our holding does not exclude the possibility of summary judgment when an
employer presents undisputed evidence that a legitimate reason was the exclusive motivation
for discharging the employee. In such a case, the employer has demonstrated that the
employee cannot show that a discriminatory or retaliatory reason was a substantial factor in
the discharge decision and therefore has met its burden of production for summary judgment.
Because no genuine issue of material fact exists on an essential element, either summary
judgment or directed verdict may be granted.
D.
We further observe that summary judgment must be denied in this case because Mr.
Gossett has clearly identified genuine issues of material fact. In Mills v. CSX
Transportation, Inc., we stated that when a nonmoving party has clearly identified a genuine
issue of material fact on the element that the moving party is attempting to negate, a court
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need not decide whether the party moving for summary judgment has satisfied its burden of
production pursuant to Tennessee Rule of Civil Procedure 56. 300 S.W.3d at 634. Without
regard to whether a moving party has met its burden of production, summary judgment is not
warranted when there is a genuine issue of any material fact as to the contested element.
Tenn. R. Civ. P. 56.04.
Tractor Supply, in its summary judgment motion, pointed to evidence contesting Mr.
Gossett’s ability to establish at trial that a retaliatory motive was a substantial factor in
Tractor Supply’s decision to discharge him. Mr. Gossett in turn proffered evidence showing
genuine issues of material fact about whether Tractor Supply’s motive for discharging Mr.
Gossett was in fact retaliatory. Specifically,
• Mr. Gossett points to the deposition testimony of Accounts Payable Manager John
Trotter, who assumed the Inventory Control Manager responsibilities in addition to
his own responsibilities. Mr. Trotter described the two job responsibilities as
“dramatically different,” raising a genuine issue of material fact as to whether
redundancy between the two positions actually motivated Mr. Gossett’s discharge as
Mr. Lewis maintained.
• Mr. Gossett points to John Trotter’s statement that Mr. Lewis said shortly after
discharging Mr. Gossett that he was discharged for “unacceptable performance,” not
because of a redundancy in management, raising a genuine issue of material fact
about Tractor Supply’s motivation behind Mr. Gossett’s discharge.
• Mr. Gossett points to a newspaper advertisement published the Sunday before he was
discharged in which Tractor Supply sought a financial analyst for Mr. Gossett’s
department, raising a genuine issue of material fact as to whether Tractor Supply
actually intended to reduce its workforce by discharging Mr. Gossett.
• Mr. Gossett points to facts showing that his predecessor was demoted instead of
discharged when Tractor Supply decided to remove him from the Inventory Control
Manager position, raising a genuine issue of material fact as to why Tractor Supply
discharged rather than demoted Mr. Gossett.
These genuine issues of material fact about Tractor Supply’s proffered motivation preclude
summary judgment. Id. at 634-35; cf. White, 533 F.3d at 393 n.6 (“The question of whether
the employer’s judgment was reasonable or was instead motivated by improper
considerations is for the jury to consider.”).
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E.
Tractor Supply next argues that summary judgment is warranted pursuant to Collins
because Mr. Gossett did not report to an authority within or outside Tractor Supply that Mr.
Massmann had asked him to perform an illegal activity. It is undisputed that Mr. Gossett did
not report the activity, and we therefore address only whether reporting is an essential
element of Mr. Gossett’s claim.
The elements of a common law retaliatory discharge action can apply to many distinct
factual scenarios. See Chism, 762 S.W.2d at 556. We have stated that it can arise when an
employee is discharged either for refusing to remain silent about an illegal activity or for
refusing to participate in an illegal activity. Anderson, 857 S.W.2d at 556; see Chism, 762
S.W.2d at 556. When an employee is discharged for refusing to remain silent about an
illegal activity, the employee must show that his or her reporting of the illegal activity
furthered a clear public policy. See Guy, 79 S.W.3d at 537 & n.4. Without this showing, the
claimant cannot establish the third element of the common law retaliatory discharge action,
which requires proof of the clear public policy that the employer violated by the discharge.
See Crews, 78 S.W.3d at 862.
We have never held that an employee alleging retaliatory discharge for refusing to
participate in an illegal activity must report the illegality to show that the employer violated
a clear public policy. Cf. Reynolds, 887 S.W.2d 822 (upholding a verdict in favor of truckers
claiming retaliatory discharge for refusing to drive uninspected trucks in violation of federal
and state laws without considering whether the truckers reported their employer’s illegal
activity). Tractor Supply asserts that pursuant to Collins, 241 S.W.3d at 885, reporting the
allegedly illegal activity is essential to showing the third element in a case for common law
retaliatory discharge based on refusing to participate in an illegal activity.
In Collins, the employee “alleged that she was fired solely because she refused to go
along with [her supervisor’s] illegal instructions.” Id. at 882. The Court of Appeals affirmed
the summary judgment on the employee’s statutory and common law retaliatory discharge
claims and held that “[p]ersons asserting either a statutory or common law whistleblowing
claim must prove” that “their employer violated a law or regulation” and that their efforts to
report “an illegal or unsafe practice furthered an important public policy interest.” Id. at 885
(citing Guy, 79 S.W.3d at 538 n.4). It found summary judgment proper because the
employee failed to demonstrate that her supervisor’s request was illegal and because she
“failed to present any proof that she reported or attempted to report [her supervisor’s] request
to other bank officials or regulators.” Id. at 885-86.
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 Although we agree with the statement in Collins concerning the requirements of
whistleblowing claims, Collins involved a plaintiff who refused to participate in an allegedly
illegal activity, not a plaintiff who refused to remain silent about it. In a “whistleblowing”
case, in which a failure to remain silent is alleged, the nature of the claim asserts that silence
was broken. The employee has no cause of action unless the employee shows that the
reporting furthered some clear public interest. A case alleging a refusal to participate does
not require that silence be broken for a claim to exist, and reporting therefore is not integral
to the claim. For the purposes of the common law retaliatory discharge cause of action, we
decline to hold that an employee’s refusal to violate the law never furthers a clear public
policy unless the employee reports the employer’s attempted violation. The Court of Appeals
therefore incorrectly applied the reporting element to the employee’s action for common law
retaliatory discharge for refusing to participate in an illegal activity.
Our decision not to add a reporting requirement will not expand the use of the
common law retaliatory discharge cause of action or cause the retaliatory discharge exception
to swallow the employment-at-will doctrine that Tennessee courts have long recognized.
Chism, 762 S.W.2d at 555-56. Claimants alleging common law retaliatory discharge must
identify “‘an unambiguous constitutional, statutory or regulatory provision’” as evidence of
the public policy that the employee’s discharge violates. Guy, 79 S.W.3d at 535 (quoting
Chism, 762 S.W.2d at 556); Crews, 78 S.W.3d at 862. This element sufficiently limits the
retaliatory discharge cause of action to only those cases in which a discharge violates public
policy. Chism, 762 S.W.2d at 557. Collins, for example, properly affirmed summary
judgment because the employee alleging retaliatory discharge failed to identify an
unambiguous constitutional, statutory, or regulatory provision evincing a clear public policy
that the employee furthered by refusing to follow her supervisor’s instruction. 241 S.W.3d
at 885-86 & n.4.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the Court of Appeals reversing
the trial court’s grant of summary judgment to Tractor Supply. Costs are assessed against
the appellant, Tractor Supply Company, Inc., for which execution may issue if necessary.
JANICE M. HOLDER, CHIEF JUSTICE
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