David Jones v. City of Union City, Tennessee

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 29, 2015 Session
DAVID JONES, ET AL. v. CITY OF UNION CITY, TENNESSEE
Direct Appeal from the Circuit Court for Obion County
No. CC-12-CV-84 William B. Acree, Judge
No. W2013-02358-COA-R3-CV – Filed December 17, 2015
This appeal involves three former police officers who were terminated from their
employment with the Union City Police Department. They filed this lawsuit claiming
that they were terminated solely for refusing to remain silent about illegal activities, in
violation of the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1-304. The trial
court granted summary judgment to the City, concluding that Plaintiffs failed to establish
an exclusive causal relationship between their refusal to remain silent and their discharge
and that the City terminated Plaintiffs for rational and non-pretextual reasons. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ROGER A. PAGE, SP. J., joined.
Anne Hunter Williams, Heather Moore Collins, Brentwood, Tennessee, and Michael L.
Russell, Franklin, Tennessee, for the appellants, David Jones, Randy O‟Dell, and Ashley
Thompson Merrill.
Pamela G. Vawter and Michael R. Hill, Milan, Tennessee, for the appellee, City of Union
City, Tennessee.
OPINION
I. FACTS & PROCEDURAL HISTORY
On the evening of August 7, 2010, shortly after his shift ended, Union City police
officer Michael Hogg reported to the Obion County Sheriff‟s Department that his four-
wheeler had been stolen. Earlier that year, Hogg repeatedly tried to convince fellow
Union City police officer Randy O‟Dell to buy the four-wheeler or find someone who
would. When O‟Dell told Hogg that he could not afford the four-wheeler, Hogg
suggested that O‟Dell could “just take it home and you can have it.” Hogg told O‟Dell
that he wished someone would steal the four-wheeler so that he could turn it in to his
insurance. Hogg said he was done with the four-wheeler and did not want it. Odell
learned that Hogg reported the four-wheeler stolen the same night Hogg filed the report.
He thought the theft report was “kind of odd” given the comments Hogg made about
wishing it would be stolen. O‟Dell felt suspicious about the situation, but he did not
report his suspicion to the chief of police, to the Obion County Sheriff‟s Department, or
to the District Attorney‟s office. Instead, he contacted Hogg about the comments he had
made and told Hogg it sounded “funny.” Within weeks of the theft report, O‟Dell
learned that Hogg also made comments to fellow Union City police officer David Jones
about wanting to get rid of the four-wheeler before it was reported stolen.
Hogg had approached Jones to ask if he wanted the four-wheeler about a year
before it was reported stolen. Jones told Hogg that he could not afford the four-wheeler,
and in response, Hogg stated that Jones could “just come take it,” and Hogg would claim
it on his insurance. Jones believed Hogg was trying to “set him up.” Jones learned of
Hogg‟s theft report shortly after it was made. However, Jones did not inform the chief of
police, the Obion County Sheriff‟s Department, or the District Attorney‟s office about
Hogg‟s previous comments.
Fellow officer Ashley Thompson Merrell was on duty the night the four-wheeler
was reported stolen and heard the dispatcher‟s announcement to “be on the lookout” for
the four-wheeler. She immediately questioned why Hogg would have gone home from
work at night and immediately noticed that his four-wheeler was missing. While
patrolling, Merrell encountered an Obion County sheriff‟s deputy and mentioned the
stolen four-wheeler to him. The sheriff‟s deputy told Merrell that Hogg asked him about
buying it several months earlier, but the sheriff‟s deputy said he could not afford it. Later
that night, Merrell spoke with O‟Dell and learned that Hogg had been trying to get rid of
the four-wheeler for about a year. The next night, Merrell discussed the four-wheeler
with Jones and learned that Hogg had also tried to convince him to buy it. Jones and
Merrell discussed Hogg‟s comment that Jones “could just have it,” and Jones‟s suspicion
that Hogg was trying to set him up.
Merrell later admitted she thought it was “kind of fishy” that the four-wheeler was
reported stolen after Hogg wanted to get rid of it. She, Jones, and O‟Dell discussed how
it seemed “a little fishy” that Hogg wanted to get rid of the four-wheeler and its payment
obligation, then he reported it stolen. Merrell also advised her husband that it “seemed a
little fishy” that Hogg reported the four-wheeler stolen and that she wished she had more
information. Nevertheless, she did not report the information to the chief of police, the
Obion County Sheriff‟s Department, or the District Attorney‟s office, and the crime
2
remained unsolved for over a year.
The Union City Police Department held a week-long in-service between October
31 and November 4, 2011. Tensions arose when the chief of police, Joe Garner,
announced a possible change to twelve-hour shifts for the officers. Many officers were
highly upset and opposed the shift change. Merrell and O‟Dell were among those who
opposed it. Hogg was very vocal in favor of the shift change and openly antagonized the
officers who opposed it. Hogg and another officer had a heated disagreement that
escalated into a loud “cussing match.”
At some point during in-service, O‟Dell had a conversation with Hogg and asked
if he had heard any news about his four-wheeler. Hogg replied, “The damn thing‟s
probably painted blue somewhere.” Later, during an in-service break, O‟Dell told
Merrell and other officers about Hogg‟s comment. The officers decided to report Hogg
and their suspicion that he may have filed a false report to commit insurance fraud.
Merrell volunteered to contact a local agent who worked for the Tennessee Bureau of
Investigation (“TBI”). First, however, Merrell contacted her shift supervisor, Sergeant
Tim Wright, who told her he did not see a problem with her contacting the TBI agent
about Hogg.
Late that evening, Merrell met with the TBI agent and informed him of Hogg‟s
comments. The TBI agent told Merrell to meet him at the District Attorney‟s office at
8:00 a.m. the following morning with the other officers who were involved, including
O‟Dell and Jones. Afterward, Merrell told O‟Dell and Jones that they were directed to go
to the District Attorney‟s office; however, none of the three police officers appeared at
the appointed time.
That same week, on or about November 4, 2011, the TBI agent contacted the
assistant chief of police at the Union City Police Department, Perry Barfield, and
informed him that the TBI had contacted the District Attorney‟s office and requested an
investigation concerning allegations that Hogg falsely reported his four-wheeler stolen.
Assistant Chief Barfield notified Chief Garner and the City Manager of Union City,
Kathy Dillon. However, at the request of the TBI, and pursuant to departmental policy,
the police department‟s internal investigation of the matter was delayed pending the TBI
investigation. The Chief, Assistant Chief, and City Manager refrained from discussing
the matter with Merrell, O‟Dell, and Jones during the TBI investigation. However, at
some point, Hogg, Merrell, O‟Dell, and Jones were placed on administrative leave with
pay pending conclusion of the investigation.
Merrell, O‟Dell, Jones, and other officers were interviewed by TBI agents during
the investigation. The TBI kept Assistant Chief Barfield and Chief Garner informed
3
throughout its investigation. They were aware that Merrell, O‟Dell, Jones, and other
officers were interviewed by the TBI as part of the investigation. Hogg was also
interviewed and confessed to the crime on December 21, 2011. Hogg was terminated
from his position with the Union City Police Department and subjected to criminal
prosecution. He pleaded guilty to making a false report and other related charges.
At the conclusion of the TBI investigation, the TBI provided a copy of its
investigative file and report to Assistant Chief Barfield and Chief Garner. The file
included statements signed by Merrell, O‟Dell, and Jones. Assistant Chief Barfield
conducted an internal affairs investigation for the Union City Police Department and
interviewed numerous officers, including Merrell, O‟Dell, and Jones. Based on the
information received from the TBI and the internal affairs investigation, Assistant Chief
Barfield issued an internal affairs report recommending the termination of Merrell,
O‟Dell, and Jones. He met with Chief Garner to discuss his findings. Chief Garner
agreed with the internal affairs report and its recommendation and likewise recommended
that Merrell, O‟Dell, and Jones be terminated. Both Chief Garner and Assistant Chief
Barfield told the three officers that the reason they were recommending their termination
was because they had not reported the information about Hogg sooner.
On January 13, 2012, Chief Garner signed a Personnel Action Request form,
which was provided to each of the three officers, recommending their termination for
several violations of departmental policy and the code of ethics. The internal affairs
report for each officer was attached.1 The internal affairs reports listed the departmental
policies and ethics code that Assistant Chief Barfield and Chief Garner believed were
violated. These included the following policies, which were contained in the Police
Department Manual‟s Policy and Procedures:
1
The report for O‟Dell recounted that he was approached by Hogg and asked to take the four-wheeler; he
later became aware it was reported stolen; O‟Dell contacted Hogg to ask him if it had been stolen; he
learned that Hogg also approached Jones and a sheriff‟s deputy; O‟Dell admitted this seemed odd or
funny; Hogg later told O‟Dell the four-wheeler was probably painted blue somewhere; none of this
information was reported until November 2011, when the report was initiated by another officer; and
O‟Dell was instructed to contact the authorities but failed to report to them. The internal affairs report for
Jones found that Hogg asked him to take the four-wheeler and said he would turn it in to his insurance;
Jones became aware that Hogg reported the four-wheeler stolen; Jones learned that O‟Dell and the
sheriff‟s deputy were also approached by Hogg; Jones admitted this was suspicious; the information was
not reported until November 2011, when another officer initiated the report; and Jones was instructed to
contact the authorities but failed to do so. Finally, the internal affairs report for Merrell found that she
was on duty the night the four-wheeler was reported stolen and thought the circumstances were
suspicious; she had conversations with three individuals who informed her that Hogg tried to convince
them to take the four-wheeler; in November 2011, Merrell became angry with Hogg and based on that
decided to report the information to the TBI; and the TBI agent instructed Merrell to report to the District
Attorney‟s office and to the department‟s administration but she failed to do so.
4
REPORTING VIOLATIONS
Members having knowledge of other members violating the laws,
ordinances, or departmental rules, or disobeying orders, shall report such
violations in writing to the Chief of Police through official channels.
STANDARDS
....
E. Cooperation With Other Law Enforcement Agencies - Members shall
cooperate with all law enforcement agencies, other city departments, and
public service organizations and shall give such aid and information as such
organization may be entitled to receive.
....
PROHIBITED OR REQUIRED ACTIVITIES
....
B. Investigation - Officers shall not withhold any information on criminal
activity or undertake self-assigned investigations without prior or prompt
documentation and notification of a supervisor.
The referenced Law Enforcement Code of Ethics provided, “I WILL never act officiously
or permit personal feelings, prejudices, animosities, or friendships to influence my
decisions.” Finally, the manual provided specific “offenses for which disciplinary action
may be taken,” which included any act or omission constituting a violation of the
departmental rules and procedures manual, and also “[f]ailure to report honestly and
accurately all facts pertaining to an investigation or other matter of concern to the
department.”
As City Manager, Kathy Dillon had final decision making authority over the
officers‟ terminations. She met with each of the three officers individually prior to
reviewing the investigative file. The following week, Dillon announced that she agreed
with the recommendation to terminate the officers and signed the Personnel Action
Request forms, effectuating the officers‟ termination. Dillon believed that the officers‟
conduct in failing to come forward in a timely fashion violated an important public trust
that is placed on an officer of the law and compromised their integrity as officers.
5
On April 19, 2012, Merrell, O‟Dell, and Jones (collectively, “Plaintiffs”) filed this
lawsuit against the City of Union City. Plaintiffs alleged that they “refused to remain
silent” about Hogg‟s illegal activity and that “the City was angered that Plaintiffs would
not conceal the crimes of a fellow officer.” Plaintiffs claimed that the City terminated
them “solely for reporting the illegal conduct of Hogg.” Plaintiffs asserted claims
pursuant to the Tennessee Public Protection Act, which provides, “No employee shall be
discharged or terminated solely for refusing to participate in, or for refusing to remain
silent about, illegal activities.” Tenn. Code Ann. § 50-1-304(b).
The City filed an answer denying the allegations of the complaint and claiming
that its decision was based on legitimate, nondiscriminatory, business-related reasons,
undertaken in good faith, and in no way motivated by or in retaliation for Plaintiffs‟
communications regarding illegal activity. Discovery ensued.
On July 17, 2013, the City filed a motion for summary judgment. The City
asserted that Plaintiffs lacked sufficient evidence to establish that their refusal to remain
silent about Hogg‟s criminal activity was the sole and exclusive cause of their
termination, or, for that matter, any consideration at all. The City argued that Plaintiffs
were terminated not for their refusal to remain silent about Hogg‟s criminal activity but
for the knowledge they possessed and withheld pertaining to Hogg‟s criminal activity. In
support of its motion for summary judgment, the City submitted the police department‟s
policy manual, the internal affairs reports, numerous discovery responses, the affidavits
of Assistant Chief Barfield, Chief Garner, and Kathy Dillon, and excerpts from the
depositions of Merrell, O‟Dell, and Jones.
Plaintiffs filed a response to the City‟s motion for summary judgment raising
several different arguments. Plaintiffs claimed they possessed “a myriad of evidence”
that the City‟s stated reason for their termination was untrue and pretextual. Plaintiffs
pointed to the temporal proximity of the events, emphasizing that they were terminated
soon after they were interviewed by the TBI. They claimed that various city officials
gave inconsistent descriptions of the City‟s reporting policy during their depositions,
creating a credibility issue for a jury. They argued that Chief Garner‟s deposition
testimony should be construed as an admission of sole causation. Plaintiffs also claimed
that two other police officers knew about Hogg‟s activity and failed to report it, but they
were not terminated. Finally, Plaintiffs argued that the City‟s reporting policies were
invalid because they contradicted the Tennessee Public Protection Act. In support of its
response to the motion for summary judgment, Plaintiffs submitted nine full-length
depositions.
After a hearing, the trial court entered an order granting the City‟s motion for
summary judgment. For reasons that will be discussed in more detail below, the trial
6
court found that Plaintiffs were “unable to establish an exclusive causal relationship
between the plaintiffs‟ refusal to remain silent about the illegal activities of Officer Hogg
and the city‟s discharge of them.” Plaintiffs timely filed a notice of appeal.
II. ISSUES PRESENTED
Plaintiffs raise two issues in their brief on appeal:
1. Whether the trial court erred by resolving disputed facts in favor of the
moving party by finding that Plaintiffs failed to properly report illegal
activity; and
2. Whether a legal issue exists regarding whether an employer can
implement a policy that has a chilling effect on reporting illegal activities
under [the] Tennessee Public Protection Act.
For the following reasons, we affirm the decision of the circuit court.
III. STANDARD OF REVIEW
We review a trial court‟s ruling on a motion for summary judgment de novo
without a presumption of correctness. Estate of Brown, 402 S.W.3d 193, 198 (Tenn.
2013). Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The party moving for summary
judgment 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 Ctr. of Memphis,
MPLLC, No. W2013-00804-SC-R11-CV, --- S.W.3d ---, 2015 WL 6457768, at *22
(Tenn. Oct. 26, 2015). When a motion for summary judgment is properly supported as
provided in Tennessee Rule of Civil Procedure 56, to survive summary judgment, the
nonmoving party may not rest upon the mere allegations or denials of its pleading, but
must respond, and by affidavits or one of the other means provided in Rule 56 set forth
specific facts at the summary judgment stage showing that there is a genuine issue for
trial. Id. Summary judgment should be granted if the nonmoving party‟s evidence at the
summary judgment stage is insufficient to establish the existence of a genuine issue of
material fact for trial. Id. (citing Tenn. R. Civ. P. 56.04, 56.06).
7
III. DISCUSSION
„“The employment-at-will doctrine is a bedrock of Tennessee common law.”‟
Williams v. City of Burns, 465 S.W.3d 96, 108 (Tenn. 2015) (quoting Franklin v. Swift
Transp. Co., 210 S.W.3d 521, 527 (Tenn. Ct. App. 2006)). Under the employment-at-
will doctrine, “employment for an indefinite period of time may be terminated by either
the employer or the employee at any time, for any reason, or for no reason at all.” Id.
(citing Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 26-27 (Tenn. 2011); Guy v.
Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534-35 (Tenn. 2002)). In other words, an
employer may discharge an employee-at-will without breach of contract for good cause,
bad cause or no cause at all, without being guilty of legal wrong. Id. (citing Harney v.
Meadowbrook Nursing Ctr., 784 S.W.2d 921, 922 (Tenn. 1990)). This is the traditional
rule in Tennessee, but it is not absolute. Id. Some restrictions are imposed on the right of
the employer to discharge an employee. Id.
The Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-1-304, is
sometimes called the Whistleblower Act. Williams, 465 S.W.3d at 101. It creates “a
narrowly crafted exception to the long-established common law employment-at-will
doctrine.” Sykes, 343 S.W.3d at 26. As noted above, the TPPA provides that “[n]o
employee shall be discharged or terminated solely for refusing to participate in, or for
refusing to remain silent about, illegal activities.” Tenn. Code Ann. § 50-1-304(b).
Notably, the TPPA requires the plaintiff to prove that retaliation for the protected conduct
was “the sole reason” for his or her termination. Williams, 465 S.W.3d at 110. The
Tennessee General Assembly enacted “„a stringent standard and set the bar high for
recovery‟” for a retaliatory discharge claim pursuant to the TPPA. Id. (quoting Sykes,
343 S.W.3d at 28). The statute‟s use of the term “solely” means that an employee can
prevail with a TPPA 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.” Id. at 110-11 (quoting Darnall v. A+ Homecare, Inc., No. 01-A-01-9807-
CV-0034, 1999 WL 346225, at *8 (Tenn. Ct. App. June 2, 1999) (Koch, J., concurring)).
In 2011, the Tennessee General Assembly amended section 50-1-304 to add a
subsection setting forth “a statutory burden-shifting framework to be applied to all claims
under the TPPA, both for summary judgment motions and for trial.” Williams, 465
S.W.3d at 112 n.15 (citing 2011 Tenn. Pub. Acts ch. 461). Currently, that subsection
provides:
In any civil cause of action for retaliatory discharge brought
pursuant to this section, or in any civil cause of action alleging retaliation
8
for refusing to participate in or remain silent about illegal activities, 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.
Tenn. Code Ann. § 50-1-304(f).2
A TPPA claim requires proof of four elements:
(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.
Williams, 465 S.W.3d at 111 (citing Sykes, 343 S.W.3d at 26-27). Therefore, in order to
establish a prima facie case of retaliation under the TPPA, the plaintiff employee “must
demonstrate that he engaged in conduct protected by the TPPA, that the protected
conduct was known to the defendant, that the defendant thereafter discharged him, and
that there was the requisite causal connection between the protected conduct and the
discharge.” Id. at 113 (citing Allen v. McPhee, 240 S.W.3d 803, 820 (Tenn. 2007),
abrogated on other grounds by Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn.
2010)).
2
When added in 2011, this subsection was designated subsection (g). 2011 Tenn. Laws Pub. Ch. 461. In
the current version of the statute, it appears as subsection (f). Tenn. Code Ann. § 50-1-304 (2014).
9
An employee who establishes a prima facie case of retaliatory discharge creates a
rebuttable presumption that the employer unlawfully retaliated against the employee. Id.
at 115 (citing Wilson v. Rubin, 104 S.W.3d 39, 50 (Tenn. Ct. App. 2002)). The burden
then shifts to the employer to articulate a non-retaliatory reason for the discharge. Id.
(citing Newcomb v. Kohler Co., 222 S.W.3d 368, 389 (Tenn. Ct. App. 2006)). The sole
causation element of a TPPA claim has an important impact at this stage:
In articulating a non-retaliatory reason for discharging the employee, the
defendant employer in a TPPA case need not proffer evidence that unlawful
retaliation was no part of its decision to terminate employment. Rather, the
employer need only introduce admissible evidence showing that unlawful
retaliation was not the sole cause of the employment action. That is, the
employer must proffer evidence that, even if retaliation was a motivation
for the discharge, there was at least one non-retaliatory reason as well.
Williams, 465 S.W.3d at 115.
Assuming for the sake of argument that Plaintiffs established a prima facie case,
we conclude that the City met its burden of producing evidence that one or more
legitimate, nondiscriminatory reasons existed for Plaintiffs‟ discharge.3 See Tenn. Code
Ann. § 50-1-304(f). In this case, the City filed a motion for summary judgment claiming
that Plaintiffs lacked sufficient evidence to establish that their refusal to remain silent
about Hogg‟s criminal activity was the sole and exclusive cause of their termination, or
any consideration at all. The City argued that Plaintiffs were terminated because of the
knowledge they possessed and withheld pertaining to Hogg‟s criminal activity. In other
words, the City claimed, its decision was motivated “not by Plaintiffs‟ refusal to remain
silent, but in their persistence in remaining silent for so long.” The City submitted the
police department‟s policy manual, the internal affairs reports, discovery responses, the
affidavits of Assistant Chief Barfield, Chief Garner, and Kathy Dillon, and excerpts from
the depositions of Merrell, O‟Dell, and Jones in support of its motion for summary
judgment.
3
“Where the defendant has done everything that would be required of him if the plaintiff had properly
made out a prima facie case, whether the plaintiff really did so is no longer relevant.” U.S. Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983); see also Zakour v. UT Med. Grp., Inc., 215 S.W.3d
763, 770 (Tenn. 2007) (quoting Hernandez v. New York, 500 U.S. 352, 359 (1991) (quoting Aikens, 460
U.S. at 715)).
10
The affidavit of Assistant Chief Barfield stated that the information he reviewed
from the TBI file indicated that Merrell, Jones, and O‟Dell had knowledge of Hogg‟s
comments about getting rid of the four-wheeler and claiming it on his insurance over a
year prior to Merrell‟s report to the TBI. Barfield believed, based on his investigation,
that Plaintiffs considered Hogg‟s comments and the circumstances surrounding the theft
report to be “fishy,” “suspicious,” and/or “odd,” yet they failed to report these suspicions
when they initially gained the information. Barfield stated that Plaintiffs‟ eventual
reporting of information related to Hogg‟s criminal activity “was in no way a reason or
consideration” for his recommendation that they be terminated. He claimed he was never
angered or upset that Plaintiffs divulged information about Hogg. “Rather,” he
explained, “I was concerned and upset that Plaintiffs withheld information for over a year
before doing so.” In sum, Assistant Chief Barfield stated that the sole reason for his
recommendation of termination was his concern regarding Plaintiffs‟ failures to come
forward with information sooner and his honest belief that their conduct violated
department policies and ethical standards.
Chief Garner stated in his affidavit that he conducted an independent and thorough
review of the TBI file and internal affairs file and reached the same conclusions as
Assistant Chief Barfield. He stated that he advised each of the Plaintiffs that his decision
was motivated by their failure to come forward with the information they had at or near
the time of the theft report rather than waiting until November of 2011. Both Chief
Garner and Assistant Chief Barfield stated that they never threatened or discouraged
Plaintiffs in any way from coming forward with information about Hogg.
City Manager Kathy Dillon stated in her affidavit that she had final decision-
making authority to terminate regular employees of the Union City Police Department
pursuant to the city charter and personnel policy. Dillon was aware of the TBI
investigation and internal affairs investigation, and she was advised of the
recommendations of Assistant Chief Barfield and Chief Garner. Dillon stated that she
met with each of the Plaintiffs individually and conducted a thorough and independent
review of all the information in the internal affairs file, including the policy manual and
transcripts of the interview statements of the Plaintiffs and other employees. Dillon
stated she concluded that Plaintiffs should be terminated based on her honest belief that
Plaintiffs had access to information or gut feelings that Hogg may have been involved in
criminal activity, which they withheld for over a year, in violation of departmental policy
and ethical standards. She stated her belief that the officers‟ conduct in failing to come
forward in a timely fashion violated an important public trust that is placed on an officer
of the law and compromised their integrity as officers. Dillon stated she was not upset
that Plaintiffs reported Hogg‟s criminal activity, and their report was not a factor in her
decision.
11
Because the City met its burden of producing evidence of a legitimate,
nondiscriminatory reason for Plaintiffs‟ discharge, the burden shifted to Plaintiffs to
demonstrate that the reason given by the City was not the true reason for their discharge
and that the stated reason was a pretext for unlawful retaliation. See Tenn. Code Ann. §
50-1-304(f). In response to the City‟s motion for summary judgment, Plaintiffs admitted
that Assistant Chief Barfield “honestly believed that Plaintiffs‟ conduct had violated
police department policies for professional conduct and responsibilities, including
reporting violations, the code of ethics, cooperation with other law enforcement agencies,
and failure to report honestly and accurately all facts pertaining to an investigation.”
They also admitted that Dillon had final decision making authority over the terminations,
and that “Dillon believed that the Plaintiffs‟ conduct in failing to come forward in a
timely fashion violated an important public trust that is placed on an officer of the law
and compromised their integrity as officers.”
Despite these admissions, however, Plaintiffs raised several arguments in support
of their position that the City‟s stated reason for their termination was pretextual. They
present these arguments on appeal.
A.
First, Plaintiffs argued that Chief Garner and Assistant Chief Barfield “admitted
causation” during their deposition testimony. Specifically, Plaintiffs contended that
Garner and Barfield “admitted a causal connection between Plaintiffs‟ termination and
their report of illegal activity,” meaning that their refusal to remain silent about Hogg‟s
illegal activity was the reason for their termination. The trial court rejected this
argument, and so do we. The cited testimony from Assistant Chief Barfield simply
states:
Q. All right. Chief, do you agree with me that had the plaintiffs not
come forward that Officer Hogg very well may never have been arrested?
A. I agree with that, yes, sir.
Q. Okay. And do you agree with me that the law should encourage
employees to come forward?
12
A. Yes, sir.
This testimony does not establish that Plaintiffs were terminated for reporting illegal
activity.
The cited testimony from Chief Garner does not constitute an admission of
causation either. The following exchange occurred during his deposition:
Q. Okay. And as far -- and at the time they reported this, there was no
ongoing investigation about whether or not Michael -- Mr. Hogg had
engaged in illegal conduct. Is that correct?
A. No, there was not.
Q. And so if they -- had they not come forward, in other words, but for
them reporting Michael Hogg, they would not have been terminated. In
other words, their termination would never have happened if they hadn‟t
come forward. Is that correct?
....
A. Their termination wouldn‟t have been caused if all the information
had been brought forward accurately, that -- yes. He -- had he not been
arrested or charged, probably not.
Q. Okay. So but for them coming forward, their terminations would not
have been caused. Is that correct?
MS. VAWTER: Object to the form.
A. Well, it‟s not just the coming forward. It‟s in respect to the whole
totality of the reporting in a timely manner.
13
Q. Yeah. I mean, I understand that the City takes the position that -- that
-- that the manner of their reporting was not correct. Is that true?
A. Correct.
Q. But had they not come forward, they never would have been fired.
Correct?
A. Had they not come forward, Mike Hogg would probably not have
been arrested.
Q. I understand that. Had they not come forward, Mike Hogg might still
be employed by the city of Union City. Correct?
A. I think eventually it would have been found out, but until then, yes.
Q. We don‟t know that.
A. We don‟t know that.
Q. And had they not come forward, Mike Hogg would not have been
arrested and they would not have been terminated. You agree with that?
A. Yes.
Chief Garner merely recognized the fact that if Plaintiffs had not reported the information
to the TBI, the investigation might not have led to Hogg‟s arrest and Plaintiffs‟
terminations. However, Chief Garner‟s testimony does not constitute an “admission of
causation” in the sense urged by Plaintiffs. His testimony does not suggest or establish
that the City terminated Plaintiffs‟ employment solely for their refusal to remain silent
about illegal activity. Plaintiffs‟ argument that these witnesses “admitted causation” is
without merit.
B.
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Plaintiffs also argued that witnesses for the City provided “inconsistent testimony
about the policy that was allegedly violated, creating a credibility dispute” and an issue
for resolution by a jury. According to Plaintiffs, because they pointed out “a credibility
dispute, not only must the court deny summary judgment, the trier of fact can disregard
everything that individual says.” For instance, Plaintiffs cited testimony from Chief
Garner and Assistant Chief Barfield regarding the City‟s written reporting policy, which
stated that “[m]embers having knowledge of other members violating the laws . . . shall
report such violations in writing to the Chief of Police through official channels.” Chief
Garner testified that officer misconduct was “supposed to be reported through the chain
of command in writing up to me.” Assistant Chief Barfield simply stated that the report
was to be in writing to the chief of police. Another officer testified that “when there is
knowledge of an officer that has committed a crime, the supervisor is to notify the chief
of police as soon as possible in writing.” We do not necessarily deem these statements
inconsistent. However, in any event, these inconsistencies do not raise a genuine issue of
material fact requiring a trial. Credibility concerns that warrant denying a summary
judgment motion must rise to a level higher than normal credibility questions that arise
whenever a witness testifies. Hill Boren, P.C. v. Paty, Rymer & Ulin, P.C., No. W2012-
00925-COA-R3-CV, 2013 WL 1136540, at *15 (Tenn. Ct. App. Mar. 19, 2013) (citing
Bailey Tool & Mfg. Co. v. Butler, No. M2009-00685-COA-R3-CV, 2010 WL 2073854,
at *7 (Tenn. Ct. App. May 21, 2010)). “„Any other rule would essentially prevent the
courts from granting a summary judgment in any case.‟” Id. (quoting Bailey, 2010 WL
2073854, at *7) (quoting Hepp v. Joe B’s, Inc., No. 01A01-9604-CV-00183, 1997 WL
266839, at *3 (Tenn. Ct. App. May 21, 1997)). The opponent to the motion for summary
judgment cannot merely point out any inconsistency in testimony or concern regarding a
witness‟s credibility to avoid the grant of summary judgment. Id. According to our
supreme court,
[T]he party opposing summary judgment must be able to point to some
facts which may or will entitle him to judgment, or refute the proof of the
moving party in some material portion, and ... the opposing party may not
merely recite the incantation, „Credibility,‟ and have a trial on the hope that
a jury may disbelieve factually uncontested proof.
Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 863 (Tenn. 1985) (citation omitted).
The policy that Plaintiffs were charged with violating was written in the police
department‟s policy manual, which the officers were required to read and understand.
The allegedly conflicting testimony regarding the policy, cited by Plaintiffs, fails to
“refute the proof of the moving party in some material portion” or raise some genuine
15
doubt as to the witnesses‟ credibility that would justify disregarding their entire
testimony. Lindsey, 689 S.W.2d at 863. Plaintiffs failed to demonstrate a genuine issue
of material fact in response to the City‟s properly supported motion for summary
judgment by simply questioning the witnesses‟ credibility.
C.
Plaintiffs also claim they have demonstrated pretext by showing that the City did
not fire other police officers who violated the same policies. Plaintiffs claim that the City
“did not terminate other officers who engaged in the exact same conduct as the Plaintiffs”
but who did not report their suspicions to the TBI.
Once an employer proffers a non-retaliatory reason for the employee‟s
termination, the employee must have a full and fair opportunity to demonstrate that the
employer‟s proffered reason is pretextual and that unlawful retaliation was the true reason
for the termination. Williams, 465 S.W.3d at 118 (citing Wilson, 104 S.W.3d at 50). At
this stage, the burden-shifting framework falls away, and the trier of fact is left to
determine the ultimate issue of retaliation. Id. (citing Gibson v. City of Louisville, 336
F.3d 511, 513 (6th Cir. 2003)). “[I]n other words, the question becomes whether the
plaintiff has established that it is more likely than not that the employer‟s proffered
reason „is mere pretext and thus a coverup‟ for the employer‟s true retaliatory motive.”
Id. (quoting Barry v. U.S. Capitol Guide Bd., 636 F. Supp. 2d 95, 102-03 (U.S.D.C.
2009)). The reasonableness of the employer‟s decision may be considered only insofar as
it illuminates the employer‟s motivation because the relevant question is not whether the
employer‟s decision was sound but whether it was pretextual. Id. at 119. Simply put,
“the plaintiff must show that the employer lied about the reason it gave for terminating
the plaintiff‟s employment, in order to mask its true retaliatory motive.” Id. After taking
into account any evidence exposing “„weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions‟” in the employer‟s proffered explanation, the trial court
must decide whether the evidence as a whole gives rise to an inference that the
employer‟s proffered non-retaliatory reason is pretextual. Id. at 118 (quoting Wilson, 104
S.W.3d at 50-51).
One method of demonstrating pretext is to show that the proffered reason was
insufficient to motivate the discharge because other employees who engaged in
substantially the same non-protected conduct were not fired. Id. at 119. In Plaintiffs‟
16
response to the City‟s motion for summary judgment, Plaintiffs argued that two other
officers, Sergeant Wright and Officer Haskins, also knew about Hogg‟s suspicious
conduct but failed to report it. In its order granting summary judgment to the City, the
trial court acknowledged Plaintiffs‟ argument that the city did not fire other employees
for violating the policy. However, the trial court found that “any knowledge other city
employees had of Officer Hogg‟s activities was obtained at or near the time the plaintiffs
reported such to the city.” Plaintiffs challenge this finding on appeal as erroneous.
However, the trial court‟s finding is clearly supported by the evidence cited in Plaintiffs‟
own response to the motion for summary judgment.
Plaintiffs argued in their response that Sergeant Wright “knew of the illegal
activity and never reported it,” and they provided citations to deposition testimony from
Sergeant Wright, Chief Garner, and Assistant Chief Barfield. According to the cited
deposition testimony, Sergeant Wright found out about Hogg‟s conduct in early
November 2011, on November 2 or 3, which was on or around the day Merrell reported it
to the TBI. This evidence, cited by Plaintiffs, supports the trial court‟s finding that “any
knowledge other city employees had of Officer Hogg‟s activities was obtained at or near
the time the plaintiffs reported such to the city.” The cited testimony does not establish
that Sergeant Wright engaged in “substantially the same” conduct as Plaintiffs. To the
contrary, it establishes that he learned of the suspicious activity around the time it was
reported to the TBI in November 2011, while Plaintiffs were aware of Hogg‟s comments
and the subsequent alleged theft of Hogg‟s four-wheeler for over a year by the time the
situation was reported in November 2011. The cited testimony also establishes that
Sergeant Wright was disciplined by the police department in the form of a written
reprimand because he failed to report the information he learned about Hogg‟s conduct to
the chief of police, even though Merrell reported it to the TBI. The fact that Sergeant
Wright received lesser discipline based on his circumstances does not demonstrate that
the stated reason for terminating Plaintiffs was pretextual.
Plaintiffs also argued in their response that Officer Haskins was a similarly
situated employee who was not terminated. Again, however, the evidence cited by
Plaintiffs in response to the motion for summary judgment does not establish that
Haskins engaged in substantially the same conduct as Plaintiffs. Haskins said in his
deposition that when he learned that Hogg‟s four-wheeler was stolen, he “automatically
assumed, yeah right,” and his first thought was, “He probably burned it.” However,
Haskins testified that he became aware of actual facts indicating that Hogg may have
committed a crime when Hogg was discussed at in-service in November 2011. Haskins
testified that he reported the situation to his lieutenant that same day and believed that
reporting the information “back up the ladder” through his lieutenant, in addition to
contacting the TBI, was sufficient. Haskins was interviewed by the TBI during its
17
investigation.
Again, the City‟s conduct toward Haskins does not suggest that its stated reason
for terminating Plaintiffs was pretextual or insufficient to motivate their discharge. The
evidence cited by Plaintiffs failed to establish that Haskins engaged in substantially the
same conduct; instead, it established that Haskins learned of information indicating that a
crime may have been committed in November 2011, and he reported it to his lieutenant
that same day. He also provided information to the TBI during its investigation, like
Plaintiffs, and was not terminated from his employment for doing so.
In sum, we conclude that Plaintiffs‟ response to the motion for summary judgment
failed to demonstrate a genuine issue of material fact regarding whether the City‟s stated
reason for their termination was pretextual. Given the testimony cited by Plaintiffs in
their response, we cannot say the trial court erred in concluding that any knowledge the
other officers had regarding Hogg‟s activity was obtained at or near the time Plaintiffs
reported the information.4
D.
Plaintiffs also emphasize the temporal proximity between their contact with the
TBI and their termination. The temporal proximity of an adverse action and a complaint
constitutes circumstantial evidence that is pertinent and probative on the issue of
causation and retaliatory intent. Sykes, 343 S.W.3d at 29 (citing Allen, 240 S.W.3d at
822). “[C]lose temporal proximity between a protected activity and an adverse
employment action is a fact that an employee may offer to demonstrate that a genuine
issue of material fact exists as to the causation element.” Id. Suspicious timing can be
4
We recognize that Plaintiffs cite additional facts in their brief on appeal in an attempt to demonstrate that
Haskins and Wright were similarly situated employees because, according to Plaintiffs‟ deposition
testimony, Haskins and Wright had knowledge of Hogg‟s suspicious activity earlier than they admitted.
However, these additional facts were not cited in Plaintiffs‟ response to the summary judgment motion.
Plaintiffs attached nine full-length depositions as exhibits to their response, but it was not the trial court‟s
responsibility to blindly scour the record to identify any genuine issues of material fact that were not
identified or argued in Plaintiffs‟ response. “In considering whether the trial court erred in granting
summary judgment, we will look to the evidence that the parties presented to the trial court at each stage
of the summary judgment proceedings to decide whether the parties met their burden of production and
whether a genuine issue of fact existed.” Cartwright v. Jackson Capital, No. W2011-00570-COA-R3CV,
2012 WL 1997803, at *11 n.9 (Tenn. Ct. App. June 5, 2012); see also Rye, --- S.W.3d --- , 2015 WL
6457768, at *22 (“The nonmoving party must demonstrate the existence of specific facts in the record
which could lead a rational trier of fact to find in favor of the nonmoving party.”) (emphasis added). The
only testimony cited by Plaintiffs in their response supports the trial court‟s finding on this issue.
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indirect evidence of discriminatory intent. Pierce v. City of Humboldt, No. W2012-
00217-COA-R3CV, 2013 WL 1190823, at *14 (Tenn. Ct. App. Mar. 25, 2013). “As with
other facts proffered by the employee in opposition to a summary judgment motion, the
court should consider temporal proximity in a light most favorable to the nonmoving
party.” Sykes, 343 S.W.3d at 29. However, “a court‟s consideration of temporal
proximity „does not exclude the possibility of summary judgment[.]‟” Id. (quoting
Gossett, 320 S.W.3d at 786). In Sykes, the supreme court specifically rejected the
suggestion that, under Tennessee case law, “any plaintiff who can demonstrate close
temporal proximity is automatically entitled to a trial on his or her retaliatory discharge
claim.”5 Id. at 31.
Here, Plaintiffs‟ circumstantial evidence regarding the temporal proximity of the
events does not cast doubt on the City‟s proffered reason for Plaintiffs‟ termination. The
TBI investigation revealed that Plaintiffs had knowledge of Hogg‟s suspicious activities
for more than a year, and the City terminated Plaintiffs shortly thereafter. Considering
the circumstances of this case, the temporal proximity between the Plaintiffs‟ termination
and their contact with the TBI is not sufficient to raise a genuine issue of material fact
regarding the element of causation. The City presented undisputed evidence that at least
one legitimate reason was part of the motivation for discharging the Plaintiffs. Again,
Plaintiffs admitted that Assistant Chief Barfield “honestly believed that Plaintiffs‟
conduct had violated police department policies for professional conduct and
responsibilities, including reporting violations, the code of ethics, cooperation with other
law enforcement agencies, and failure to report honestly and accurately all facts
pertaining to an investigation.” They also admitted that Dillon had final decision making
authority over the terminations and that “[she] believed that the Plaintiffs‟ conduct in
failing to come forward in a timely fashion violated an important public trust that is
placed on an officer of the law and compromised their integrity as officers.”
Under the TPPA, the plaintiff must ultimately establish that retaliation is the
“sole” reason for the termination of his or her employment. Williams, 465 S.W.3d at 115.
The City submitted evidence that Plaintiffs were discharged for at least one legitimate,
non-pretextual reason and thereby affirmatively negated the final element of the
Plaintiffs‟ TPPA claim – sole causation. Even viewing all the evidence in the light most
favorable to Plaintiffs, a reasonable juror could not conclude that the sole reason for the
Plaintiffs‟ termination was their refusal to conceal or remain silent about Hogg‟s illegal
activity.
5
Likewise, “[a] majority of the federal courts of appeals have affirmatively rejected the proposition that,
where the employer has set forth a legitimate, non-discriminatory reason for its action, temporal
proximity alone is sufficient evidence of pretext to survive summary judgment.” Gossett, 320 S.W.3d at
794 (Clark, J., concurring in part and dissenting in part) (citations omitted).
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E.
We now turn to Plaintiffs‟ argument on appeal that “a legal issue exists regarding
whether an employer can implement a policy that has a chilling effect on reporting illegal
activities under the Tennessee Public Protection Act.” They claim that the City‟s written
reporting policy has “a chilling effect on encouraging employees to report illegal conduct
under the TPPA.” Plaintiffs argue that the Tennessee Supreme Court rejected such
policies in Williams v. City of Burns and held that an employer cannot maintain a policy
that circumvents an employee‟s absolute right to report illegal activity. We disagree with
Plaintiffs‟ reading of Burns and their characterization of the policy at issue in this case.
At the outset, we note that the written policy in this case requires officers having
knowledge of other members violating the laws to report such violations in writing to the
chief of police through official channels. This policy does not discourage employees
from reporting illegal conduct; it encourages and even mandates reporting.
Furthermore, the policy at issue in this case is distinguishable from the policy at
issue in Williams v. City of Burns. In that case, a police officer reported the chief of
police to the mayor and was terminated. 465 S.W.3d at 101. The City claimed that the
police officer violated its “chain of command” policy by reporting to the mayor rather
than to the chief of police, who was the wrongdoer. Id. at 107. The supreme court
explained that “„[i]mproperly applied, a chain-of-command policy will undermine fair
employment policies.‟” Id. at 117 (quoting Fleming v. Corr. Healthcare Solutions, Inc.,
164 N.J. 90, 751 A.2d 1035, 1040 (2000)). The supreme court had previously held that
whistleblower protection is not afforded to an employee who reports wrongdoing only to
the wrongdoer, who is already aware of his or her own misconduct, as there has been no
exposure of the employer‟s illegal or unsafe practices. Haynes v. Formac Stables, Inc.,
463 S.W.3d 34, 40 (Tenn. 2015). The supreme court explained in Williams that “„[t]o
discipline an employee for going over the head of a supervisor allegedly involved in
illegal . . . workplace activity undermines exactly what the Legislature had in mind when
it passed the Whistleblower Act.‟” Williams, 465 S.W.3d at 117 (quoting Fleming, 751
A.2d at 1039). Accordingly, the court held that the employer could not rely on its chain
of command policy to satisfy its burden of proffering a non-retaliatory reason for the
officer‟s discharge. Id. at 117. In fact, the court explained that the city‟s evidence that it
discharged the officer for speaking to the mayor about the chief‟s illegal activity
amounted to direct evidence of a retaliatory motive, meaning an admission by the city
that it retaliated against the officer for engaging in protected conduct. Id.
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The policy at issue in this case is different. It does not forbid reporting to a higher
authority; it requires reporting. Williams did not broadly hold or suggest that any
employer policy that could potentially have a “chilling effect” on a whistleblower is
invalid or that whistleblowers are provided with absolute protection from discipline. To
the contrary, when the supreme court cited Fleming for its discussion of chain of
command policies, the supreme court added the following footnote, which we find
particularly instructive here:
The Fleming court added this caveat: “This does not mean that an
employer may not fire an employee, even a whistleblower, who is
unreasonable in expressing his or her complaints.” Fleming, 751 A.2d at
1039 (citing as an example of unreasonable behavior a public employee
who calls the governor repeatedly late at night to report wrongdoing in a
state agency).
Williams, 465 S.W.3d at 117 n.24. This recognition by the supreme court undermines
Plaintiffs‟ argument that employers can no longer implement any policy that could have a
chilling effect on whistleblowers or potentially impact their absolute right to report illegal
activity. Consequently, we reject their argument that the City could not rely on its
written reporting policy to demonstrate a legitimate nondiscriminatory reason for their
termination.
We also reject Plaintiffs‟ argument that this case involves direct evidence of a
retaliatory motive, constituting direct evidence of retaliation, like that in Williams. Direct
evidence does not require the fact finder to draw any inferences in order to conclude that
unlawful discrimination or retaliation motivated the employer‟s decision. Frye v. St.
Thomas Health Servs., 227 S.W.3d 595, 609 (Tenn. Ct. App. 2007); Paschall v. Henry
Cnty. Bd. of Educ., No. W1999-0070-COA-R3-CV, 2000 WL 33774557, at *4 (Tenn. Ct.
App. June 2, 2000). Direct evidence may include an acknowledgment by the employer of
discriminatory intent. Paschall, 2000 WL 33774557, at *5. In the Williams case, the city
admitted that it discharged the officer for speaking to the mayor about the chief‟s illegal
activity, which allegedly violated the chain of command policy, but constituted protected
conduct under the TPPA. By comparison, the record in this case contains no direct
evidence that the City terminated Plaintiffs because they reported to the TBI or because
they engaged in any other protected conduct.
21
V. CONCLUSION
For the aforementioned reasons, the decision of the circuit court is hereby affirmed
and remanded. Costs of this appeal are taxed to the appellants, David Jones, Randy
O‟Dell, and Ashley Thompson Merrell, for which execution may issue if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
22