Anthony Parker v. ABC Technologies, Inc.

02/23/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 2, 2020
ANTHONY PARKER v. ABC TECHNOLOGIES, INC. ET AL.
Appeal from the Circuit Court for Sumner County
No. 83CC1-2019-CV-942 Joe Thompson, Judge
___________________________________
No. M2020-00675-COA-R3-CV
___________________________________
A discharged employee sued his former employer and two managers for (1) retaliatory
discharge under the Tennessee Public Protection Act, (2) common law retaliatory
discharge, (3) negligent retention, and (4) breach of contract. The trial court dismissed the
employee’s claims pursuant to Tennessee Rule of Civil Procedure 12.02(6). After our
independent examination of the pleadings, we conclude that the employee failed to state a
claim upon which relief can be granted and affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
KRISTI M. DAVIS, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR.,
P.J., M.S., and ARNOLD B. GOLDIN, J., joined.
Anthony Parker, Murfreesboro, Tennessee, Pro Se.
Timothy K. Garrett and L. Lymari Cromwell, Nashville, Tennessee, for the appellees, ABC
Technologies Inc., Sara Shield, and James Dash.
OPINION
Background
On October 17, 2019, Anthony Parker (“Parker”), proceeding pro se, filed a
complaint against ABC Technologies, Inc. (“ABC”), Sara Shield (“Shield”), and James
Dash (“Dash”) (together, “Defendants”) in the Circuit Court for Sumner County (the “trial
court”). Parker asserted four separate causes of action: wrongful termination under the
Tennessee Public Protection Act (“TPPA”); common law retaliatory discharge; negligent
retention of managers; and breach of contract. He did not attach to the complaint his
alleged contract with ABC. See Tenn. R. Civ. P. 10.03 (2020) (providing that, subject to
certain enumerated exceptions, “[w]henever a claim is founded upon a written instrument
other than a policy of insurance, a copy of such instrument or the pertinent parts thereof
shall be attached to the pleading as an exhibit”). The complaint contains the following
factual allegations relevant to Parker’s claims, which we reproduce verbatim:
10. In 2018[,] Sara Shield HR Manager wrongfully terminated an
employee with a disability.
11. In 2019[,] James Dash, 3rd shift General Manager accused of
inappropriately touching female hourly associates.
....
13. On August 12, 2019, Anthony Parker signed employment contract as
2nd shift Supervisor.
....
16. Defendants breached the employment contract by changing terms.
17. On August 28, 2018, [sic] while on 3rd shift, James Dash General
Manager became threatening and intimidating by saying Phillip the
forklift driver does not have to follow my instructions. Phillip was
asked by an associate and team leader to bring needed material to
press 12 but never did.
....
19. About September 11, 2019, the shipping Team leader found empty
beer can after start of shift. She brought it to my attention whereas
Plaintiff took picture and showed upper management the beer can. Ty
Koelker and Sara Shield were dismissive of beer can found at entrance
door by time clock near cafeteria.
20. About September 12, 2019, Ty Koelker, the Operation Manager,
covering for James Dash during his vacation on 3rd shift. Ty Koelker
used vulgar cursing abusive language threatening associates and
Plaintiff. He became irritated by GP12 associates preventing door
panels from being shipped out on trucks.
....
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22. On September 18, 2019[,] Sara Shield HR Manager and James Dash
General manager demanded I sign a job performance plan/
STATEMENT OF UNDERSTANDING.
23. On September 18, 2019, Plaintiff refused to sign job performance
plan/Statement of Understanding.
24. On September 19, 2019, submitted complaint on ABC Technologies
Inc. ethics hotline reporting alcohol abuse, illegal drugs and hostile
work environment, (#447359004501).
25. Reported 3rd shift maintenance man was under the influence of opioids
while management was aware.
....
28. On September 25, 2019, Sara Shield said my job was being terminated
because I did not sign the Job Performance Plan/STATEMENT OF
UNDERSTANDING.
29. ABC Technologies Inc. in Gallatin, Tennessee retaliated by
terminating my employment for reporting[] drug and alcohol abuse on
3rd shift creating a hostile work environment managed by James Dash,
General Manager.
30. On September 25, 2019, offered severance pay of $5,000.00; the
amount was less money than one-month severance in original
employment contract.
31. The original employment contract offered Plaintiff 1 months’
severance of $65,000. That equals $5,416.66. Not $5,000 offered in
severance agreement Plaintiff rescinded.1
....
39. Plaintiff alleges refusal to sign statement of understanding was the but
for factor in Defendant’s decision to terminate employment.
....
1
We construe this allegation to mean that Parker was entitled to one-month’s salary or $5,416.66
as severance pay (that is, $65,000.00 divided by twelve months).
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46. Plaintiff made formal complaint on ABC Technologies Inc. ethics hot
line was the but for factor in James Dash and Sara Shield’s decision
to terminate employment.
....
52. Plaintiff alleges Defendant knew James Dash created a hostile work
environment and was accused of inappropriate touching of female
associate but was not terminated[.]
53. Plaintiff alleges Sara Shield wrongfully terminated an employee with
a disability [and] has a pattern of terminating employment.
....
55. Defendant ABC Technologies Inc. did not terminate James Dash or
Sara Shield employment after being aware of violating company
ethics, moral and violating company policies.
....
72. Plaintiff alleges refusal to sign statement of understanding was the but
for factor in Defendant’s decision to terminate employment.
73. On September 25, 2019, Defendant changed terms of employment
contract by offering less money as severance than in original
employment contract signed on August 12, 2019[.]
Defendants filed a joint motion to dismiss Parker’s complaint in its entirety pursuant
to Tennessee Rule of Civil Procedure 12.02(6).2 Defendants argued that the TPPA and
common law retaliatory discharge claims against Shield and Dash should be dismissed
because these types of claims do not contemplate individual liability for co-employees.
Defendants also argued that the negligent retention and breach of contract claims against
Shield and Dash should be dismissed because Shield and Dash could not negligently retain
themselves and Parker did not allege a contract between himself and Shield and Dash.
As to ABC, Defendants alleged that the TPPA, common law retaliatory discharge,
and negligent retention claims should be dismissed because Parker failed to allege facts
supporting one or more elements of these claims. They also alleged that the breach of
2
Rule 12.02(6) permits defendants to file a motion to dismiss a plaintiff’s claim for “failure to state
a claim upon which relief can be granted.” Tenn. R. Civ. P. 12.02(6).
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contract claim should be dismissed because Parker did not plead specific facts concerning
the existence of a legally binding contract. However, Defendants also attached to their
motion “the only alleged employment contract of which Defendant ABC is aware.” They
argued that under that contract, Parker is guaranteed severance only if “discharged without
cause,” and pointed to Parker’s allegations that he was terminated for refusing to sign a job
performance plan. Section 1 of the employment contract states, in relevant part:
[T]he Employer may terminate this Agreement and the employment of the
Employee at any time:
(a) during the probationary period of three (3) months from the
Commencement Date without cause and without prior notice or
payment in lieu of notice;
(b) without cause upon payment of One (1) month’ [sic] Basic Salary as
severance, and contingent upon the execution of a release and the
other conditions contained in Section 14; or
(c) with cause (determined reasonably and in good faith by the
Employer),without prior notice or payment of severance.
Section 4 of the contract states: “It is hereby acknowledged and agreed that the employment
relationship created hereby is intended to be an ‘employment at will’ relationship and that
either party may terminate the employment relationship with or without cause at any time
subject to the provisions of Section 1.” As to compensation, Section 7 of the contract
provides that “Basic Salary” of “the Employee . . . shall be . . . (US$65,000), per annum,
gross.” Parker filed a response to Defendant’s motion to dismiss, primarily restating the
allegations in his complaint but also attaching a copy of the same unsigned employment
contract Defendants had filed with their motion.
On January 24, 2020, the trial court entered an order granting Defendants’ motion
to dismiss the entire case. On April 28, 2020, the trial court denied Parker’s motion to alter
or amend its judgment,3 noting that “in addition to having to accept the well-pled factual
allegations in [Parker]’s complaint, the Court also must determine whether those facts are
sufficient to assert a legal cause of action. In other words, the Court must determine if
those facts state a claim under Tennessee law for which relief can be granted. In that legal
analysis, the Court determined that [Parker]’s complaint fails.” Parker timely appealed the
dismissal of his claims.
3
Parker had filed this motion on January 16, 2020, three days after the trial court heard Defendant’s
motion to dismiss, but before the trial court entered its January 24, 2020 order granting Defendant’s motion.
Parker’s motion was heard on April 20, 2020, after continuances resulting from the COVID-19 pandemic.
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Issues Presented
Parker asks this Court to review whether the trial court erred in granting ABC’s
motion to dismiss his claims for (1) violation of the TPPA; (2) common law retaliation; (3)
negligent retention; and (4) breach of contract.
Standard of Review
The standard of review applicable to a trial court’s ruling on a motion to dismiss
based on Rule 12.02(6) of the Tennessee Rules of Civil Procedure is de novo, with no
presumption of correctness. Phillips v. Montgomery Cnty., 442 S.W.3d 233, 237 (Tenn.
2014). A Rule 12.02(6) motion to dismiss challenges only the legal sufficiency of the
complaint, not the strength of the plaintiff’s proof or evidence. Webb v. Nashville Area
Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011). Such motion “‘admits the
truth of all of the relevant and material allegations contained in the complaint, but . . .
asserts that the allegations fail to establish a cause of action.’” Brown v. Tenn. Title Loans,
Inc., 328 S.W.3d 850, 854 (Tenn. 2010) (quoting Freeman Indus., LLC v. Eastman Chem.
Co., 172 S.W.3d 512, 516 (Tenn. 2005)). Thus, the trial court’s ruling must be based on
its examination of the pleadings alone. Webb, 346 S.W.3d at 426. Moreover, the trial court
“must construe the complaint liberally, presuming all factual allegations to be true and
giving the plaintiff the benefit of all reasonable inferences.” Tigg v. Pirelli Tire Corp., 232
S.W.3d 28, 31–32 (Tenn. 2007). However, for a complaint to survive a motion to dismiss,
“[t]he facts pleaded, and the inferences reasonably drawn from these facts, must raise the
pleader’s right to relief beyond the speculative level.” Abshure v. Methodist Healthcare–
Memphis Hosps., 325 S.W.3d 98, 104 (Tenn. 2010). “[C]ourts are not required to accept
as true assertions that are merely legal arguments or ‘legal conclusions’ couched as
facts.” Webb, 346 S.W.3d at 427 (citation omitted).
Analysis
Parker broadly asserts that the trial court erred in dismissing the claims in his
complaint because the trial court held him to a higher standard for pleading than that
required under Tennessee Rule of Civil Procedure 8.05.4 We review independently the
4
Rule 8.05 provides:
(1) Each averment of a pleading shall be simple, concise and direct. No technical forms of
pleading or motions are required. Every pleading stating a claim or defense relying upon
the violation of a statute shall, in a separate count or paragraph, either specifically refer to
the statute or state all of the facts necessary to constitute such breach so that the other party
can be duly apprised of the statutory violation charged. The substance of any ordinance or
regulation relied upon for claim or defense shall be stated in a separate count or paragraph
and the ordinance or regulation shall be clearly identified. The manner in which violation
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allegations in Parker’s complaint to determine if they sufficiently state claims upon which
relief can be granted. See Tenn. R. Civ. P. 12.02(6).
I. Retaliatory Discharge under the TPPA
Under the TPPA, “[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) (2014) (emphasis added). To state a claim for relief under the
Act, a plaintiff must allege that (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 terminated the plaintiff’s employment; and (4) the sole reason for termination
was plaintiff’s refusal to participate in or remain silent about the illegal activity. Davis v.
Vanderbilt Univ. Med. Ctr., No. M2019-01860-COA-R3-CV, 2020 WL 4516094, at *3
(Tenn. Ct. App. Aug. 5, 2020), perm. app. denied (Tenn. Nov. 12, 2020) (citing Webb, 346
S.W.3d at 437). Our Supreme Court has emphasized that this statutory cause of action
“requires an employee to show that his or her refusal to remain silent was the sole reason
for the discharge.” Haynes v. Formac Stables, Inc., 463 S.W.3d 34, 37 (Tenn. 2015) (citing
Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 537 (Tenn. 2002)). The TPPA defines
illegal activities as “activities that are in violation of the criminal or civil code of this state
or the United States or any regulation intended to protect the public health, safety or
welfare.” Tenn. Code Ann. § 50-1-304(a)(3). At all stages of a case, the plaintiff has the
burden of establishing a prima facie case of retaliatory discharge. Id. § 50-1-304(f).
In his complaint, Parker alleged that on August 28, 2019, Dash “became threatening
an intimidating by saying . . . the forklift driver does not have to follow my instructions.”
Parker also alleged that on September 11, 2019, he “showed upper management” a picture
of an empty beer can another employee found near ABC’s cafeteria, and that the next day,
another employee “used vulgar cursing abusive language threatening associates and
[him].” Parker stated that on September 19, 2019, he submitted a complaint via ABC’s
ethics hotline to report “alcohol abuse, illegal drugs[,] and a hostile environment.” He then
asserted that ABC terminated his employment because he reported “drug and alcohol abuse
on 3rd shift creating a hostile work environment.” However, Parker also alleged in his
complaint that on September 18, 2019, he “refused to sign job performance plan/Statement
of any statute, ordinance or regulation is claimed shall be set forth.
(2) A party may set forth two or more statements of a claim or defense alternatively or
hypothetically. When two or more statements are made in the alternative and one of them
if made independently would be sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements. A party may also state as many
separate claims or defenses as he or she has, regardless of consistency.
Tenn. R. Civ. P. 8.05 (2020) (emphasis added).
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of Understanding,” and that, a week later, Shield told him that he “was being terminated
because [he] did not sign the Job Performance Plan/STATEMENT OF
UNDERSTANDING.”
As a preliminary matter, Parker’s TPPA claim fails as to Shield and Dash because
he did not allege he was employed by either one of these defendants. See Davis, 2020 WL
4516094, at *3. Turning to ABC, although Parker alleged circumstances that might reflect
poorly on the management of a business or constitute an unpleasant work environment, he
did not allege that any of the activities he experienced or reported to his superiors violated
a civil or criminal code or regulation, as required by the Act. See Tidwell v. Holston
Methodist Fed. Credit Union, No. E2019-01111-COA-R3-CV, 2020 WL 3481537, at *3
(Tenn. Ct. App. June 25, 2020) (stating that TPPA claims fail as a matter of law where
plaintiffs do not identify any provisions of the Tennessee or United States Code or any
regulations intended to protect the public health or safety); Konvalinka v. Fuller, No.
E2017-00493-COA-R3-CV, 2019 WL 2323831, at *8 (Tenn. Ct. App. May 31, 2019)
(concluding that defendant employer was entitled to judgment as a matter of law because
former employee failed to identify a specific statutory or regulatory provision that he
believed had been violated or would be violated). Moreover, Parker alleged that he refused
to sign a job performance plan/statement of understanding presented to him by ABC and
that Shield told him such refusal was the reason for his termination. Indeed, he alleged that
his “refusal to sign [the] statement of understanding was the but[-]for factor in [ABC]’s
decision to terminate [his] employment.” Compl. ¶¶ 39, 65, 72. Taking Parker’s
allegations as true, as we must, we are constrained to find that the sole reason for his
termination was not an activity protected by the TPPA. We conclude that he failed to state
a claim under the Act.
II. Common Law Retaliatory Discharge5
Having determined that Parker did not state a claim for relief under the TPPA, we
now consider whether the allegations in his complaint state a claim for common law
retaliatory discharge. See Tenn. Code Ann. § 50-1-304(g) (providing that the statute
“abrogates and supersedes the common law with respect to any claim that could have been
brought under this section”).
We first note that Parker asserted this second claim purportedly under Tennessee
5
The complaint purports to state a separate cause of action for “Violation of Tennessee’s Policy
and Implied Contract Employment at will Exceptions.” Parker essentially alleges that his termination
violated “Tennessee’s exception to employment at will policy.” Although the trial court did not rule
expressly on this issue, pursuant to our de novo review of the complaint and our analysis below, we
conclude that Parker’s allegations pertinent to this “claim” are properly subsumed within his common law
retaliatory discharge claim.
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Code Annotated section 50-1-801.6 We construe this claim as one for retaliatory discharge
under common law. See Lawrence v. Chattanooga-Hamilton Cnty. Hosp. Auth., No.
E2016-02169-COA-R3-CV, 2017 WL 4476858, at *7 (Tenn. Ct. App. Oct. 6, 2017) (citing
Tenn. Code Ann. § 50–1–801 (2017)) (“In the same bill, the General Assembly also
simultaneously added section 50–1–801, providing the same burden of proof for common
law retaliatory discharge claims.”). To state a claim for common law retaliatory discharge,
a plaintiff must allege that (1) an employment-at-will relationship existed; (2) he was
discharged; (3) the reason for his discharge was that he 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) a substantial
factor in the employer’s decision to discharge him was his exercise of protected rights or
his compliance with clear public policy. Richmond v. Vanguard Healthcare Servs., LLC,
No. M2014-02461-COA-R3-CV, 2016 WL 373279, at *9 (Tenn. Ct. App. Jan. 29, 2016)
(citing Collins v. AmSouth Bank, 241 S.W.3d 879, 884 (Tenn. Ct. App. 2007)). Notably,
unlike a TPPA claim, a retaliatory discharge claim under common law requires the plaintiff
to show that the alleged protected action was a substantial factor, not the sole factor leading
to termination. Id. (citing Williams v. City of Burns, 465 S.W.3d 96, 111 (Tenn. 2015)).
This cause of action aims to balance ‘“the employment-at-will doctrine and rights
granted employees under well-defined public policy.”’ Konvalinka, 2019 WL 2323831, at
*4 (citation omitted). However, this “public policy exception” to the employment-at-will
doctrine “must be narrowly construed to prevent it from ‘consum[ing] or eliminat[ing] the
general rule.”’ Id. (quoting Chism v. Mid-S. Milling Co., 762 S.W.2d 552, 556 (Tenn.
1988)). Thus, a common law retaliatory discharge claim is available only “‘in limited
circumstances, [where] certain well-defined, unambiguous principles of public policy
confer upon employees implicit rights which must not be circumscribed or chilled by the
potential of termination.”’ Quinn-Glover v. Reg’l Med. Ctr. at Memphis, No. W2011-
00100-COA-R3-CV, 2012 WL 120209, at *6 (Tenn. Ct. App. Jan. 17, 2012) (internal
quotation marks omitted) (citing Franklin v. Swift Transp. Co., Inc., 210 S.W.3d 521, 530–
31 (Tenn. Ct. App. 2006) (citation omitted)).
Like his TPPA claim, Parker’s common law retaliatory discharge claim against
Shield and Dash fails because he did not allege he was employed by either one. See
Richmond, 2016 WL 373279, at *9.
Concerning ABC, Parker relied on the same set of facts he alleged to support his
TPPA claim. He did not allege, however, that his termination resulted from exercising any
specific constitutional or statutory right. Nor did he point to a constitutional, statutory, or
regulatory provision to show that his termination violated a clear public policy. These
6
Section 50-1-801 “does not in itself provide a cause of action.” Swanson v. Summit Med. Grp.,
PLLC, No. 3:14–CV–39–TAV–HBG, 2014 WL 2208948, at *3 (E.D. Tenn. May 28, 2014).
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omissions are fatal to Parker’s claim. Quinn-Glover, 2012 WL 120209, at *10 (citing
Gossett v. Tractor Supply Co., 320 S.W.3d 777, 787 (Tenn. 2010)) (finding that a
complaint’s failure to cite a specific public policy as “embodied in the law” did not
sufficiently allege a claim of common law retaliatory discharge). In other words, Parker’s
claim cannot survive “simply by claiming that he believed his employer’s actions were
‘wrong’ or against ‘public policy.’” Konvalinka, 2019 WL 2323831, at *5 (quoting
Sanders v. Henry Cnty., No. W2008-01832-COA-R3-CV, 2009 WL 1065916, at *8 (Tenn.
Ct. App. Apr. 21, 2009)). Because Parker failed to identify any constitutional, statutory,
or regulatory provision implicated by ABC’s conduct, his claim fails. Moreover, although
Parker alleged that his “formal complaint on [ABC’s] ethics hot line was the but[-]for
factor” in his termination, he also asserted multiple times that his refusal to sign the job
performance plan was also the “but[-]for” factor for his termination. See Compl. ¶¶ 39,
65, 72. In light of Parker’s conflicting allegations, we conclude that he also failed to allege
that his exercise of a protected right was a substantial factor for his termination. Therefore,
Parker’s complaint did not state a common law claim for retaliatory discharge.
III. Negligent Retention
Parker alleges that ABC negligently retained its managers Dash and Shield. To
establish a claim for negligent hiring, supervision, or retention of an employee, a plaintiff
must establish—in addition to the elements of a negligence claim7—that the employer had
knowledge of the employee’s unfitness for the job. Brown v. Mapco Exp., Inc., 393 S.W.3d
696, 703 (Tenn. Ct. App. 2012) (quoting Doe v. Catholic Bishop for Diocese of Memphis,
306 S.W.3d 712, 717 (Tenn. Ct. App. 2008)). With respect to the employee’s unfitness,
the plaintiff has the burden of showing that “the employee or independent contractor was
not qualified to perform the work for which he was hired.” Davis v. Covenant Presbyterian
Church, No. M2013-02273-COA-R3-CV, 2014 WL 2895898, at *8 (Tenn. Ct. App. June
23, 2014) (citing Marshalls of Nashville, Tenn., Inc. v. Harding Mall Assoc., Ltd., 799
S.W.2d 239, 243 (Tenn. Ct. App. 1990)); see also Brown, 393 S.W.3d at 703 (affirming
summary judgment in favor of employer on a negligent retention claim where plaintiff did
not make factual allegations showing that employee in question was “unfit for her job”).
Parker’s allegations are clearly insufficient to state a claim for negligent retention
against Shield and Dash. As employees of ABC, Shield and Dash could not also assume
the role of employer and “retain” their own employment.
With respect to ABC, Parker averred that Shield and Dash worked as the
7
“It is well-settled that a plaintiff in a negligence action must prove the essential elements of duty,
breach of duty, causation in fact, proximate causation, and damages.” Watson v. Payne, 359 S.W.3d 166,
168 (Tenn. Ct. App. 2011) (citing Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993)).
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corporation’s HR Manager and 3rd shift General Manager, respectively. He alleged that
ABC knew Dash “created a hostile work environment and was accused of inappropriate
touching of female associates.” The only factual allegation in support of the conclusory
allegation that Dash created a hostile work environment is that Dash was “threatening and
intimidating” by saying “Phillip the forklift driver does not have to follow my instructions.”
In the absence of any other factual allegations—and assuming that ABC was aware of
Dash’s statement about the forklift driver—we have little trouble concluding that Parker
failed to allege that Dash was not fit for his job as 3rd shift General Manager. Parker’s
allegation that Dash was accused of inappropriate touching of female associates does not
help his claim. Taking the allegation as true, there is no allegation in the complaint
indicating whether the accusations were presented to ABC, whether the accusations were
proven true, or anything else that would show that the accusations made Dash unfit for his
job. Concerning Shield, Parker alleged that she “wrongfully terminated an employee with
a disability [and] has a pattern of terminating employment.” Again, the allegation that
Shield “wrongfully” terminated an employee is conclusory and unsupported by any factual
allegations elsewhere in the complaint. Further, without more, the allegation that Shield
had a “pattern of terminating employment” would seem to result squarely from her
responsibilities as HR Manager. We conclude that Parker failed to allege that Shield or
Dash were unfit for their jobs at ABC, let alone that ABC had knowledge that they were
unfit to perform their jobs. As a result, Parker’s complaint failed to “aver sufficient facts”
to support his negligent retention claim. See Heflin v. Iberiabank Corp., 571 S.W.3d 727,
737 (Tenn. Ct. App. 2018) (affirming grant of motion to dismiss a negligent hiring claim
where plaintiff did not allege employee “had a criminal history or record of misbehavior
that would have disqualified her from being hired”).
IV. Breach of Contract
We first conclude that Parker failed to state a claim for breach of contract against
Shield or Dash because he did not allege entering into any contracts with either employee.
With respect to his former employer, Parker alleged that ABC breached the terms
of his employment contract by offering him “severance pay of $5,000.00,” which was “less
money than [the] one-month severance” contemplated in the “original employment
contract [he] signed on August 12, 2019.” To recover under a breach of contract theory, a
plaintiff must show (1) the existence of an enforceable contract, (2) nonperformance
amounting to a breach of the contract, and (3) damages caused by the breach of the contract.
ARC LifeMed, Inc., v. AMC–Tennessee, Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005)
(citing Life Care Ctrs. of Am., Inc. v. Charles Town Assoc.’s Ltd. Partnership, LPIMC Inc.,
79 F.3d 496, 514 (6th Cir. 1996)). In addition, Rule 10.03 of the Tennessee Rules of Civil
Procedure provides:
Whenever a claim or defense is founded upon a written instrument other than
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a policy of insurance, a copy of such instrument or the pertinent parts thereof
shall be attached to the pleading as an exhibit unless the instrument is (1) a
matter of public record in the county in which the action is commenced and
its location in the record is set forth in the pleading; (2) in the possession of
the adverse party and this fact is stated in the pleading; (3) inaccessible to the
pleader or is of such nature that attaching the instrument would be
unnecessary or impracticable and this fact is stated in the pleading, together
with the reason therefor. Every exhibit so attached or referred to under (1)
and (2) shall be a part of the pleading for all purposes.
Tenn. R. Civ. P. 10.03. Thus, under Rule 10.03, the parties are required to attach a copy
of written instruments that form the bases for their claims or defenses, absent certain
circumstances. Moreover, a copy of a written instrument attached to a pleading pursuant
to the provisions of the rule becomes a part of the pleading itself.
In its motion to dismiss, ABC argued that Parker “references an employment
contract in his Complaint, but does not attach a copy of such alleged contract . . . [and his]
claim is, therefore, deficient and lacks sufficient specificity to allege that a valid and
enforceable contract exists.” However, ABC attached to its motion a copy of a purported
employment contract with Parker and argued that Parker’s claim fails because under that
contract, he was not entitled to severance pay. Taking as true Parker’s allegation that he
signed an employment contract with ABC on August 12, 2019, and given that (1) part of
ABC’s defense is based on the contents of the contract attached to its motion and (2) Parker
himself filed a copy of the very same unsigned contract with his response to ABC’s motion
to dismiss, we will review the contract’s provisions as a part of the pleadings. See Tenn.
R. Civ. P. 10.03.
Section 1, subsection (a), of the contract submitted by the parties provides that ABC
may terminate “this Agreement and the employment of the Employee at any time . . . during
the probationary period of three (3) months from the Commencement Date without cause
and without prior notice or payment in lieu of notice.” (Emphasis added). We find this
provision unambiguous and, thus, dispositive of Parker’s breach of contract claim. See
Ralph v. Pipkin, 183 S.W.3d 362, 367 (Tenn. Ct. App. 2005) (citation omitted) (“As long
as the terms of a contract are unambiguous, the contract will be enforced as written.”). In
his complaint, Parker avers that he is entitled to severance pay as contemplated under the
employment contract he signed in August 2019. He alleges that he was discharged on
September 25, 2019, which was well within his three-month probationary period. As the
trial court noted, “the employment contract does not guarantee [Parker] any severance if
he is terminated during his probationary period.” Consequently, Parker’s claim for breach
of contract fails, as a matter of law, because, under the employment contract, ABC had the
right to terminate his employment without cause and without payment of severance in any
amount.
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Conclusion
We affirm the judgment of the Sumner County Circuit Court dismissing Parker’s
complaint for failure to state a claim upon which relief can be granted. Costs of this appeal
are taxed to the appellant, Anthony Parker, for which execution may issue if necessary.
_________________________________
KRISTI M. DAVIS, JUDGE
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