Dr. William P. Harman v. University of Tennessee

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 11, 2011 Session

DR. WILLIAM P. HARMAN v. UNIVERSITY OF TENNESSEE

Appeal by Permission from the Court of Appeals, Western Section

Chancery Court for Hamilton County

No. 08-0698 Howell N. Peoples, Chancellor

No. E2009-02139-SC-R11-CV - Filed September 16, 2011

The issue presented in this case is whether the employee’s complaint states a cause

of action for relief under the Tennessee Public Protection Act. The employee, hired as a

university professor and department head, filed suit against the university after he was

removed as department head. On motion of the university, the trial court concluded that the

complaint failed to allege that the employee was discharged or terminated or that he was

discharged or terminated for refusing to participate in or for refusing to remain silent about

illegal activities and dismissed the complaint pursuant to Tennessee Rule of Civil Procedure

12.03. A cause of action arises under the Act when an employer discharges or terminates the

employee for refusing to participate in or for refusing to remain silent about illegal

activities. We determine that because the employee was neither terminated nor discharged

from his employment, only removed as department head, the complaint does not allege facts

from which we can reasonably infer a claim under the Tennessee Public Protection

Act. Therefore, we affirm the trial court’s Tennessee Rule of Civil Procedure 12.03

dismissal of the employee’s complaint.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Chancery Court

Affirmed

S HARON G. L EE, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK, C.J.,

G ARY R. W ADE, and W ILLIAM C. K OCH, J R., JJ., joined. J ANICE M. H OLDER, J., filed a

dissenting opinion.

Randall D. Larramore, Chattanooga, Tennessee, for the appellant, Dr. William P. Harman.

Brian A. Lapps, Jr., and Thomas C. Doolan, Knoxville, Tennessee, for the appellee,

University of Tennessee.

OPINION

Dr. William P. Harman, a professor employed by the University of Tennessee (“the

University”) at Chattanooga, filed suit against the University, alleging a violation of the

Tennessee Public Protection Act (“TPPA”), as well as common law and constitutional

claims. The TPPA, commonly termed the “Whistleblower Statute,” prohibits the discharge

or termination of an employee for refusing to participate in or for refusing to remain silent

about illegal activities. Tenn. Code Ann. § 50-1-304(1)(b) (Supp. 2010). The University

filed a Tennessee Rule of Civil Procedure 12.03 motion for judgment on the pleadings

asserting that Dr. Harman failed to state a claim for relief under the TPPA. The trial court

granted the motion and dismissed the TPPA claim, ruling that, assuming the facts of the

complaint to be true, Dr. Harman was neither discharged from his employment nor did he

refuse to participate in or remain silent about any alleged illegal activities. Dr. Harman

appealed the trial court’s dismissal of his TPPA claim.1 The Court of Appeals affirmed the

judgment of the trial court. Harman v. Univ. of Tenn., No. E2009-02139-COA-R3-CV, 2010

WL 2432049, at *5 (Tenn. Ct. App. June 16, 2010). We granted Dr. Harman’s Rule 11

application for permission to appeal.

At issue is the sufficiency of Dr. Harman’s complaint. Tennessee Rule of Civil

Procedure 8.01 requires that a pleading that sets forth a claim for relief contain “(1) a short

and plain statement of the claim showing that the pleader is entitled to relief; and (2) a

demand for judgment for the relief the pleader seeks.” While the complaint need not contain

detailed allegations of all the facts giving rise to the claim, it must show that the plaintiff is

entitled to relief. See Adams v. Carter Cnty. Mem’l Hosp., 548 S.W.2d 307, 308-09 (Tenn.

1977). An essential purpose of the complaint is “to give notice of the issues to be tried so

that the opposing party can adequately prepare for trial.” Keisling v. Keisling, 92 S.W.3d

374, 377 (Tenn. 2002).

The legal sufficiency of a complaint can be tested by a Tennessee Rule of Civil

Procedure 12.032 motion for judgment on the pleadings or a Tennessee Rule of Civil

Procedure 12.02(6)3 motion for failure to state a claim upon which relief can be granted. The

1

Dr. Harman did not appeal the trial court’s decision that his common law and constitutional claims

were barred under the doctrine of sovereign immunity.

2

Tennessee Rule of Civil Procedure 12.03 provides in pertinent part that “[a]fter the pleadings are

closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.”

3

Tennessee Rule of Civil Procedure 12.02 provides in pertinent part:

(continued...)

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motions, being essentially the same, are reviewed under the same standards. See Timmins

v. Lindsey, 310 S.W.3d 834, 838 (Tenn. Ct. App. 2009); Waldron v. Delffs, 988 S.W.2d 182,

184 (Tenn. Ct. App. 1998) (citing 3 Nancy F. MacLean & Bradley A. MacLean, Tennessee

Practice 190 (2d ed. 1989)).

In determining the sufficiency of a complaint, we must construe it in the plaintiff’s

favor, “by taking all factual allegations in the complaint as true and by giving the plaintiff

the benefit of all the inferences that can be reasonably drawn from the pleaded

facts.” Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 352 n.1 (Tenn. 2008) (citing

Lanier v. Rains, 229 S.W.3d 656, 660 (Tenn. 2007)). “A trial court should grant a motion

to dismiss ‘only when it appears that the plaintiff can prove no set of facts in support of the

claim that would entitle the plaintiff to relief.’” Webb v. Nashville Area Habitat for

Humanity, Inc., __ S.W.3d __, __, 2011 WL 2905584, at *3 (Tenn. 2011) (quoting Crews

v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002)); see also Lanier, 229 S.W.3d

at 660; Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999); Pemberton v. Am. Distilled

Spirits Co., 664 S.W.2d 690, 691 (Tenn. 1984); Fuerst v. Methodist Hosp. S., 566 S.W.2d

847, 848 (Tenn. 1978); Ladd v. Roane Hosiery, Inc., 556 S.W.2d 758, 759-60 (Tenn.

1977). The determination of whether the facts, as set forth in the complaint, constitute a

cause of action presents a question of law, Timmins, 310 S.W.3d at 838-39, and, accordingly,

our review is de novo with no presumption of correctness. Graham v. Caples, 325 S.W.3d

578, 581 (Tenn. 2010); Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008).

For Dr. Harman’s complaint to state a cause of action under the TPPA, it must allege

facts that support the essential elements of a cause of action under the TPPA.4 These

3

(...continued)

Every defense, in law or fact, to a claim for relief in any pleading, whether

a claim, counterclaim, cross-claim, or third-party claim, shall be asserted

in the responsive pleading thereto if one is required, except that the

following defenses may at the option of the pleader be made by motion in

writing: . . . (6) failure to state a claim upon which relief may be

granted . . . .

4

The TPPA, codified at Tennessee Code Annotated section 50-1-304, provides in pertinent part as

follows:

(b) No employee shall be discharged or terminated solely for refusing to

participate in, or for refusing to remain silent about, illegal activities.

...

(d)(1) Any employee terminated in violation of subsection (b) shall have a

cause of action against the employer for retaliatory discharge and any other

(continued...)

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elements are: (1) the plaintiff’s status as defendant’s employee; (2) the plaintiff’s refusal to

participate in or remain silent about illegal activities; (3) the defendant employer’s discharge

or termination of the plaintiff; and (4) an exclusive causal relationship between the plaintiff’s

refusal to participate in or remain silent about illegal activities and the defendant employer’s

discharge of the plaintiff. Sykes v. Chattanooga Hous. Auth., __ S.W.3d __, __, 2011 WL

2517145, at *6 (Tenn. 2011); see also Boyd v. Edwards & Assoc., 309 S.W.3d 470, 473

(Tenn. Ct. App. 2009) (quoting Voss v. Shelter Mut. Ins. Co., 958 S.W.2d 342, 344 (Tenn.

Ct. App. 1997)). The University contends that Dr. Harman has failed to satisfy the second

and third of these elements.

In reviewing the sufficiency of Dr. Harman’s complaint, we take the following

allegations from his complaint as true:

• In the Fall of 2000, the University hired Dr. Harman as a professor and department

head of the University’s Department of Philosophy and Religion within the University’s

College of Arts and Sciences.

• During Dr. Harman’s performance as department head, he received either

commendable or distinguished ratings and never received an unsatisfactory rating.

• Dr. Harman’s duties as department head included the review of the academic

credentials and professional performance of professors within the Department.

• Talia Welsh, hired as an assistant professor in the Department in 2001, was

scheduled to be considered for tenure in the spring/summer of 2008. During 2007, as part

of his administrative duties as department head, Dr. Harman concluded that Ms. Welsh’s

professional conduct was not acceptable. His conclusions were based in part on her repeated

and unannounced absences from the classroom, her refusal to accept his advice when she

engaged in an extra-marital affair with an undergraduate student in the department, her

falsification of information in several year-end reports and in her resume, and her fraudulent

claims for several alleged publications that did not exist.

• When the Dean of the College of Arts and Sciences, Herbert Burhenn, became aware

of Dr. Harman’s evaluation of Ms. Welsh, he instructed the Acting Dean to order Dr. Harman

to remove all negative information from the evaluation.

4

(...continued)

damages to which the employee may be entitled.

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• Dr. Harman informed Dean Burhenn that he did not intend to remain silent about

these matters while the University conducted a final tenure review for Ms. Welsh. Dr.

Harman sent Dean Burhenn an e-mail stating “I cannot any longer obey orders to cover up

professional malfeasance on the part of any member of this department, and I cannot agree

to having such information suppressed.” In a meeting following the email, Dean Burhenn

asked Dr. Harman to resign as department head.

• When Dr. Harman refused to resign or remain silent about Ms. Welsh’s “academic

fraud,” he was “informed that he would be terminated as Department Head at the end of the

academic year. This termination was based on [his] refusal to alter official documents or

remain silent as to the academic fraud and professional malfeasance which was perpetrated

on the University and the citizens of the State of Tennessee.”

It is not disputed that Dr. Harman was removed as department head, but continued to

be employed as a professor. Whether his complaint is sufficient depends on whether the

TPPA applies to an employee whose employment relationship is completely severed or only

modified in some manner. By its language, the TPPA applies to an employee who is

“discharged or terminated.” Because these terms are unambiguous, we look to “the natural

and ordinary meaning of the statutory language within the context of the entire statute

without any forced or subtle construction that would extend or limit the statute’s meaning”

to determine the legislature’s intent. State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000);

see In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007) (“Where the statutory

language is not ambiguous, . . . the plain and ordinary meaning of the statute must be given

effect.”). We “‘presume that the legislature says in a statute what it means and means in a

statute what it says there.’” Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 803

(Tenn. 2000) (quoting BellSouth Telecomms., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct.

App. 1997)).

“Termination of employment” is defined as “[t]he complete severance of an employer-

employee relationship.” Black’s Law Dictionary 1482 (7th ed. 1999). “Discharge,” in the

context of an employment relationship, is defined as “[t]he firing of an employee.” Id. at

475; see also Howard v. Life Care Ctrs. of Am., Inc., No. E2004-00212-COA-R3-CV, 2004

WL 1870067, at*5 (Tenn. Ct. App. Aug. 20, 2004) (stating that the statute’s requirement that

the employee be “terminated” “clearly require[s] an act on the part of the employer to end

the employment relationship.”). Thus, the plain and ordinary meaning of the words

“discharged” and “terminated” is a complete severance of the employment relationship.

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We note that the legislature did not include any terms indicating that other actions by

the employer, such as “demotion,”5 might also give rise to an action under the statute. The

mention of one subject in a statute signifies the exclusion of other unmentioned subjects, and

“[o]missions are significant when statutes are express in certain categories but not

others.” Carver v. Citizen Utils. Co., 954 S.W.2d 34, 35 (Tenn. 1997). The legislature could

have used terms in addition to “discharged” or “terminated” had it intended to target

discriminatory activity beyond discharge or termination as it has done in other

instances.6 See, eg., (Occupational Safety and Health Act of 1972) Tenn. Code Ann. § 50-3-

106(7) (2008) (emphasis added) (“No employee shall be discharged or discriminated against

because the employee has filed a complaint . . . or because of the exercise by the employee

on behalf of the employee or others of any right afforded by this chapter.”); (Tennessee

Human Rights Act) Tenn. Code Ann. § 4-21-301 (2005) (emphasis added) (“It is a

discriminatory practice for [any] person to: (1) [r]etaliate or discriminate in any manner

against a person because such person has opposed a practice declared discriminatory by this

chapter or because such person has made a charge, filed a complaint, testified, assisted or

participated in any manner in any investigation, proceeding or hearing under this chapter.”;

(Educational Professional Negotiations Act) Tenn. Code Ann. § 49-5-609(a)(6) (2009)

(emphasis added) (“It is unlawful for a board of education or its designated representative

to: Discharge or discriminate against an employee because the employee has filed an

affidavit, petition or complaint or given information or testimony under this part.”); Tenn.

Code Ann. § 22-4-106(d)(1)-(2) (2009) (emphasis added) (“No employer shall discharge or

in any manner discriminate against an employee for serving on jury duty . . . . Any employee

who is discharged, demoted or suspended because the employee has taken time off to serve

5

Whistleblower statutes in the following jurisdictions specifically include “demotion”

among prohibited employer actions: Alabama (Ala. Code § 36-26A-3 (2001)); Colorado (Colo. Rev. Stat.

Ann. § 24-50.5-102(1) (2010)); District of Columbia (D.C. Code § 1-615.52(a)(5)(A) (Supp. 2011)); Florida

(Fla. Stat. § 112.3187(3)(c) (2008)); Indiana (Ind. Code § 22-5-3-3(b)(5) (2010)); Iowa (Iowa Code Ann. §

70A.28(6) (2011)); Kansas (Kan. Stat. Ann. § 75-2973(b)(2) (Supp. 2010)); Massachusetts (Mass. Gen. Laws

ch. 149, § 185(a)(5) (2004)); Mississippi (Miss. Code Ann. § 25-9-173(2)(b) (2010)); Missouri (Mo. Rev.

Stat. § 105.055(4) (Supp. 2011)); Nevada (Nev. Rev. Stat. § 281.611(5)(f) (2008)); New Jersey (N.J. Stat.

Ann. § 34:19-2(e) (2000)); New York (N.Y. Lab. Law § 740(1)(e) (McKinney Supp. 2011)); Oklahoma

(Okla. Stat. Ann. tit. 74, § 840-2.5(E)(1) (Supp. 2011)); Oregon (Or. Rev. Stat. § 659A.200(1) (2009)); South

Carolina (S.C. Code Ann. § 8-27-20(A) (Supp. 2010)); Texas (Tex. Gov’t Code Ann. § 554.001(3) (2004));

Vermont (Vt. Stat. Ann. tit. 3, § 972(4) (2010)); Washington (Wash. Rev. Code § 42.40.050(1)(b)(vi) (Supp.

2011)); Wisconsin (Wis. Stat. § 230.80(2)(a) (2009)).

6

At least one commentator has observed the unusually restrictive nature of Tennessee’s

whistleblower statute as compared to “the broad measures” taken by other states, noting that our statute

applies “only where there has been a termination.” James N. Adler & Mark Daniels, Managing the

Whistleblowing Employee, 8 Lab. Law. 19, 38 (1992).

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on jury duty is entitled to reinstatement and reimbursement from lost wages and work

benefits caused by such acts of the employer.”).

We conclude that the legislature intended that there be a complete severance of

employment before a claim arises under the TPPA.7 The University continued to employ Dr.

Harman as a tenured professor after removing him as department head. Because there was

no termination or discharge as is required to maintain a cause of action under the TPPA, Dr.

Harman’s complaint is not sufficient to state a cause of action under the TPPA.8

Because we have determined that Dr. Harman’s complaint failed to allege facts

supporting the essential element of a discharge or termination, the issue of whether he

refused to remain silent about illegal activities is rendered moot.

Conclusion

We hold that Dr. Harman did not allege sufficient facts to support his claim for relief

under the TPPA. The trial court properly granted the University’s Rule 12.03 motion for

judgment on the pleadings, and its judgment is affirmed. Costs are assessed to Dr. William

P. Harman, for which execution may issue if necessary.

____________________________

SHARON G. LEE, JUSTICE

7

Our conclusion is also supported by the legislative history of the TPPA. At a March 7, 1990,

committee discussion of House Bill 2516, that was later enacted as the TPPA, the bill’s sponsor,

Representative Roy Herron, noted his concern that “under the current law, . . . you can be forced to choose

between a paycheck and a prison cell, between the safety of the public and the sustenance of your

family.” The statement implies that the law was intended to prevent employer actions that resulted in total

severance of employment, not lesser actions, such as demotion, that would leave the employee with a job and

compensation.

8

The issue of constructive discharge is not presented in the instant case and is not addressed by this

opinion.

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