Jason Little v. Eastgate of Jackson, LLC d/b/a Eastgate Discount Beer & Tobacco

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 28, 2006 Session

JASON LITTLE

v.

EASTGATE OF JACKSON, LLC

D/B/A EASTGATE DISCOUNT BEER & TOBACCO

An Interlocutory Appeal from the Circuit Court for Madison County

No. C-06-79 Donald H. Allen, Judge

No. W2006-01846-COA-R9-CV - Filed April 24, 2007

This is a retaliatory discharge case. The plaintiff was an at-will employee of the defendant store.

While at work, the plaintiff witnessed a woman across the street from the store being physically

assaulted by an unidentified man. The plaintiff employee took a baseball bat from under the work

counter, left the work premises, and yelled and gestured at the assailant with the bat, causing him to

leave the scene. The plaintiff then brought the woman back to the store, where the police were

called. Two days later, the defendant store terminated the plaintiff’s employment because he had

left the work premises to aid the assault victim. The plaintiff employee then sued the defendant,

asserting that his termination violated Tennessee public policy. The defendant filed a motion to

dismiss the complaint on its face, arguing that the termination did not violate a clearly established

public policy of the State of Tennessee. The trial court denied the defendant’s motion to dismiss,

determining that the complaint stated a valid claim for retaliatory discharge. The defendant was

granted permission to file this interlocutory appeal by the trial court and by this Court. We affirm,

finding that the complaint states a claim for retaliatory discharge in violation of a clear public policy

of the State of Tennessee.

Tenn. R. App. P. 9 Appeal by Permission; Judgment of the Circuit Court is Affirmed

and Remanded

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.,

and DAVID R. FARMER , J., joined.

Dale Conder, Jr., and Spencer R. Barnes, Jackson, Tennessee, for the appellant, Eastgate of Jackson,

LLC d/b/a Eastgate Discount Beer and Tobacco.

Justin S. Gilbert and Michael L. Russell, Jackson, Tennessee, for the appellee, Jason Little.

OPINION

Plaintiff/Appellee Jason Little (“Little”) was employed as a clerk at Defendant/Appellant

Eastgate of Jackson, LLC d/b/a Eastgate Discount Beer and Tobacco (“Eastgate”), a store in Jackson,

Tennessee. On September 10, 2005, while Little was working at the store, he saw a man across the

street from the store physically assaulting a woman. Little took a baseball bat from under the store

counter, left the store with the bat in hand, and gestured and yelled at the assailant, causing the

assailant to leave the scene. Little then brought the woman to the store, where the police were called.

Two days later, on Monday, September 12, 2005, along with his paycheck, Eastgate

presented Little with a separation notice terminating his employment. On the separation notice,

Eastgate gave the following reason for the termination of Little’s employment:

[Little] took a baseball bat and left company property, while still on time clock and

got involved in a fight across street from the store. This was none of our business,

store cannot be put in this kind of liability situation.

On March 7, 2006, Little filed the instant lawsuit against Eastgate, alleging that he was

wrongfully terminated in violation of the public policy of the State of Tennessee. On May 2, 2006,

Eastgate filed an answer denying the allegations, and it also filed a motion to dismiss for failure to

state a claim pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. In the motion,

Eastgate asserted that, at the time of his termination, Little was an at-will employee, that his

termination was not in violation of any clearly established public policy of the State of Tennessee,

and that he was not terminated for attempting to exercise a statutory or constitutional right. On June

5, 2006, Little filed his own affidavit, attesting to the events that took place.

On June 6, 2006, the trial court held a hearing on Eastgate’s motion to dismiss. The appellate

record does not include a transcript of that hearing. On June 13, 2006, the trial court entered an order

denying Eastgate’s motion to dismiss, holding that the complaint stated a valid claim for relief. The

trial court reasoned that “it is against the public policy of the state of Tennessee, most particularly

evidenced by Tenn. Code Ann. [§] 39-11-612 (“Defense of Third Person”), to discharge an employee

for coming to the aid of a third party being assaulted or in imminent danger of bodily harm.”

Eastgate filed a motion for permission to file an interlocutory appeal from the trial court’s decision,

and Little did not object. Permission for Eastgate’s interlocutory appeal was granted by both the trial

court and by this Court.

On appeal, Eastgate argues again that terminating Little’s employment did not violate a

clearly established public policy of the State of Tennessee and that, consequently, Little’s complaint

must be dismissed. In reviewing the trial court’s decision on a motion to dismiss, we must take all

allegations in the complaint as true; we do not evaluate the strength of the evidence. Doe v.

Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999); Mayhew v. Wilder, 46 S.W. 760, 781 n.4 (Tenn. Ct.

App. 2001). The motion must be denied unless it appears that the plaintiff can prove no set of facts

that would support a claim for relief. Sundquist, 2 S.W.3d at 922. The trial court’s legal

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conclusions drawn from the facts as alleged in the complaint are reviewed de novo, with no

presumption of correctness. Id. Here, the facts as alleged in Little’s complaint are undisputed. The

parties agree that the issue of whether Little’s termination violates a clear public policy of the State

of Tennessee is an issue of first impression in Tennessee.

Tennessee has long adhered to the employment-at-will doctrine, under which either an at-will

employee or his employer are generally permitted, with certain exceptions, to terminate the

employment relationship “at any time for good cause, bad cause, or no cause.” See Crews v.

Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002) (quoting Sullivan v. Baptist Mem’l

Hosp., 995 S.W.2d 569, 574 (Tenn. 1999)). As an exception to the employment-at-will doctrine,

the Tennessee Supreme Court has recognized that “[a]n employer’s ability to discharge at-will

employees [is] significantly tempered by our recognition . . . of a cause of action for retaliatory

discharge.” Id. at 858 (citing Clanton v. Cain-Sloan, 677 S.W.2d 441 (Tenn. 1984)). The Court

has “further recognized that an at-will employee ‘generally may not be discharged for attempting to

exercise a statutory or constitutional right, or for any other reason which violates a clear public

policy which is evidenced by an unambiguous constitutional, statutory, or regulatory provision.’ ”

Id. (quoting Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716-17 (Tenn. 1997)).

The retaliatory discharge exception to the employment-at-will doctrine should be “narrowly

applied,” and cannot be permitted to consume or eliminate the general rule. Harney v.

Meadowbrook Nursing Center, 784 S.W.2d 921, 923 (Tenn. 1990) (quoting Whittaker v. Care-

More, Inc., 621 S.W.2d 395, 397 (Tenn. Ct. App. 1981)). Nevertheless, we recognize “that, in

limited circumstances, 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.” Crews, 78 S.W.3d at 858 (quoting Stein, 945 S.W.2d at 716-17). The four elements

of a claim of retaliatory discharge are: (1) an employment-at-will relationship existed; (2) the

employee was discharged; (3) the reason for the discharge was that the employee attempted to

exercise a statutory or constitutional right, or for any other reason which violates a clear public

policy evidenced by an unambiguous constitutional, statutory, or regulatory provision; and (4) a

substantial factor in the employer’s decision to discharge the employee was the employee’s exercise

of protected rights or compliance with clear public policy. Id. at 862. Determining what constitutes

a clear public policy is a question of law, reviewed de novo with no presumption of correctness.

In this case, we focus on the third element of Little’s retaliatory discharge claim, that is,

whether Little was discharged for attempting to comply with a clear public policy evidenced by an

unambiguous constitutional, statutory, or regulatory provision.1 The trial court held that terminating

Little based on his actions violated the public policy of the State of Tennessee as evidenced in the

Tennessee Criminal Code, section 39-11-612, regarding the justification for using force in defense

of a third person. This statute provides:

1

Little does not allege that he was attempting to exercise a statutory or constitutional right; rather, the complaint

avers solely that his termination violated clearly established public policy in Tennessee “which encourages heroic

conduct of giving aid to a person in a potentially life threatening situation.”

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A person is justified in threatening or using force against another to protect a third

person if:

(1) Under the circumstances as the person reasonably believes them to be, the

person would be justified under § 39-11-611 [regarding self defense] in threatening

or using force to protect against the use or attempted use of unlawful force reasonably

believed to be threatening the third person sought to be protected; and

(2) The person reasonably believes that the intervention is immediately necessary

to protect the third person.

T.C.A. § 39-11-612 (2003).

Eastgate argues that the trial court erred in denying its motion to dismiss. Eastgate notes that

courts in Tennessee traditionally are reluctant to intrude on the employment-at-will doctrine, and

maintains that terminating Little did not constitute a violation of a clearly established public policy

of Tennessee when, under the circumstances of this case, Little’s actions unnecessarily exposed

Eastgate to liability. Eastgate argues that the trial court’s recognition of a new public policy

stemmed from an overexpansive interpretation of a criminal defense statute, in contradiction to well-

established precedent. It points out that Tennessee courts have stressed their limited role in

articulating public policy in retaliatory discharge cases, refusing to engage in the “legislative

function” of establishing public policy. The exception recognized by the trial court, Eastgate argues,

would consume the general employment-at-will doctrine, and would unduly limit employers’ ability

to make reasonable business decisions. In response, Little argues that Tennessee Code Annotated

§ 39-11-612 reflects an important public policy of encouraging the rescue of a third party from

imminent bodily harm, and that the purpose of a retaliatory discharge claim is to “encourage the

employee to protect the public interest.” Crews, 78 S.W.3d at 860 (emphasis added). He argues that

his claim springs from the ultimate public interests – the sanctity and integrity of human life, the

prevention of crime, and the safety of the public. Little asserts that criminal statutes, such as the one

at issue, constitute the voice of the legislature and are a valid source from which to find public

policy. Thus, Little argues, his complaint stated a valid claim for retaliatory discharge.

The parties agree that there are no decisions from the appellate courts of this State addressing

the viability of a claim of retaliatory discharge under these circumstances. Tennessee courts have,

however, addressed retaliatory discharge claims presented in different contexts.

Both parties cite the Tennessee Supreme Court’s decision in Crews v. Buckman Labs. Int’l,

supra, as providing the appropriate framework for determining whether the public policy exception

applies in this case. In Crews, the plaintiff lawyer was in-house counsel for the defendant

corporation. The defendant’s general counsel was not licensed to practice law in Tennessee, though

she held herself out to be a lawyer. The plaintiff reported to work officials and to the Tennessee

Board of Law Examiners that the general counsel was engaging in the unauthorized practice of law.

The plaintiff’s employment was later terminated. She then filed a lawsuit alleging that her

employment was terminated in retaliation for lodging the reports against the general counsel. The

plaintiff averred that the Tennessee Code of Professional Responsibility imposed upon lawyers the

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ethical duty not to aid non-lawyers in the unauthorized practice of law, and that she was

impermissibly terminated for complying with this duty. Crews, 78 S.W.3d at 864; see Tenn. Sup.

Ct. R. 8, DR 3-101(A) (similar to duty imposed in Tenn. Sup. Ct. R. 8, RPC 5.5, effective March 1,

2003). The trial court dismissed her complaint on its face, and the intermediate appellate court

upheld the dismissal. The Supreme Court reversed and held that the plaintiff’s complaint stated a

valid claim for relief.

The Court in Crews recognized that “many of the duties imposed upon lawyers by the

Tennessee Code of Professional Responsibility represent a clear and definitive statement of public

policy.” Id. at 864. The ethical duty not to aid in the unauthorized practice of law, the Court

reasoned, reflected an important public policy, because the purpose of the regulation was to protect

the public from those who were unlearned and unskilled in the law. The Court acknowledged that

the plaintiff was not required to report her superior’s unauthorized practice of law under the ethical

rule; her duty was only permissive. Nevertheless, the Court concluded that terminating the plaintiff

for reporting the conduct of the general counsel violated a clear public policy in Tennessee as

evidenced in the Code of Professional Responsibility. Id. at 865; see Watson v. Cleveland Chair

Co., 789 S.W.2d 538, 540 (Tenn. 1989) (recognizing a claim of retaliatory discharge when employee

was terminated for refusing to participate or remaining silent about illegal activities); Clanton v.

Cain Sloan Co., 677 S.W.2d 441, 444-45 (Tenn. 1984) (recognizing a claim of retaliatory discharge

when the employee was terminated for exercising her rights under the worker’s compensation

statutes).

Little emphasizes that, according to the Crews Court, the employment-at-will doctrine is

“significantly tempered” by the public policy exception, as is evidenced by the Court’s conclusion

in that case. Thus, Little urges a broad reading of the holding in that case and argues that the public

interest asserted in this case, encouraging citizens to attempt to protect others from imminent death

or bodily harm, is at least as important as the public interest found in Crews, protecting individuals

from those who are unskilled in the law. In contrast, Eastgate urges a narrow reading of Crews,

arguing that the decision demonstrates that the public policy exception is to be applied only in

“limited circumstances” when “well-defined” principles of public policy are violated. See Crews,

78 S.W.3d at 858.

Eastgate also cites Sloan v. Tri-County Electric Membership Corp., No. M2000-01794-

COA-R3-CV, 2002 WL 192571 (Tenn. Ct. App. Feb. 7, 2002), in support of its position. In Sloan,

the plaintiff filed a lawsuit against her former employer for retaliatory discharge, alleging that her

employment was terminated because she married a co-worker in violation of the company’s anti-

nepotism policy. The plaintiff argued that marriage is a fundamental right that is favored by the

public policy of Tennessee, and that termination of her employment violated the clear public policy

favoring marriage. The appellate court noted that Tennessee had no statute regulating a private

employer’s decisions regarding whether to employ persons who are married to each other, and that

Tennessee did not prohibit employment discrimination on the basis of “marital status.” Sloan, 2002

WL 192571, at *5. Based on the lack of any such legislation, the appellate court concluded that the

defendant company’s policy prohibiting concurrent employment of spouses did not contravene the

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State’s public policy favoring marriage. Id. at *6. Eastgate argues that this case shows that the

Tennessee courts will intrude on the employment-at-will doctrine only under very limited

circumstances. See also Harney v. Meadowbrook Nursing Center, 784 S.W.2d 921, 923 (Tenn.

1990) (refusing to recognize a claim of retaliatory discharge when the employee was discharged in

retaliation for testifying against the employer at a co-employee’s unemployment compensation

hearing); Rigsby v. Murray Ohio Mfg. Co., No. 01-A-019012CV00457, 1991 WL 95710, at *2

(Tenn. Ct. App. June 7, 1991) (refusing to recognize a claim of retaliatory discharge when employee

was discharged for exercising his right to free speech on his employer’s premises).

The only case cited by the parties which is factually similar to the instant case was decided

by the Washington Supreme Court, Gardner v. Loomis Armored, 913 P.2d 377 (Wash. 1996) (en

banc). In Gardner, the plaintiff employee drove an armored car for the defendant armored car

company. While at a scheduled stop at a bank, the plaintiff witnessed an assailant chasing a

screaming female bank employee out of the bank with a knife. Seeing no one coming to help the

bank employee, the plaintiff left his armored car. Eventually, he and his fellow employee tackled

the suspect and disarmed him. Gardner, 913 P.2d at 378-79. The armored car company later

terminated the plaintiff’s employment because he exited the armored truck, which was a violation

of an express company policy, set out in the company handbook, “forbidding armored truck drivers

from leaving the car unattended.” Id. at 379. The plaintiff later filed a lawsuit against the defendant

armored car company in federal district court. The district court certified the following question to

the Washington Supreme Court: “Does it violate public policy in the State of Washington to

discharge an at-will employee for violating a company rule in order to go to the assistance of a

citizen held hostage at the scene of a crime, and/or who is in danger of serious physical injury and/or

death?” Id. In an eight to one en banc decision, the Washington Supreme Court answered in the

affirmative.

In determining whether to recognize an exception to the at-will rule under these

circumstances, the Gardner court structured its analysis by looking at the following four elements:

(1) whether the plaintiff has proven the existence of a clear public policy; (2) whether discouraging

the conduct in which the plaintiff engaged would jeopardize the public policy; (3) whether the

“public-policy-linked conduct” in fact caused the dismissal; and (4) whether the defendant employer

has an “overriding justification” for the termination of the plaintiff’s employment. Id. at 382 (citing

Henry H. Perritt, Jr., Workplace Torts: Right and Liabilities § 3.7 (1991)). The court looked first

at whether the situation implicated clear public policy in the State of Washington:

Society places the highest priority on the protection of human life. This fundamental

public policy is clearly evidenced by countless statutes and judicial decisions.

The value placed on human life is demonstrated by the fact that courts have even

suspended certain fundamental constitutional rights when a citizen’s life is in

imminent danger. For example, the Fourth Amendment’s protection against

warrantless searches is waived under limited exigent circumstances, including

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situations where the search is necessary to prevent physical harm to the officers or

other persons.

Besides subordinating some constitutional rights, the public policy favoring the

protection of human life also serves as a defense against most criminal charges.

What would otherwise be the illegal use of force becomes lawful when it is done

to protect oneself or others from injury. Homicide is justifiable if committed in the

lawful defense of oneself or others. Furthermore, in a prosecution for any crime

other than homicide, it is a complete defense that the actor participated in the crime

under compulsion by another who by threat or use of force created an apprehension

in the mind of the actor that in case of refusal he or another would be liable to

immediate death or immediate grievous bodily injury. These statutes show society

would rather have one commit a crime under duress than refuse compliance and risk

the life of whoever is threatened. Society benefits by a citizen’s death being

prevented, to the extent that some constitutional rights and criminal laws are

suspended when one acts to save another’s life. This public policy of saving persons

from life threatening situations satisfies the clarity element.

Id. at 383-84 (emphasis added; citations & quotations omitted). Thus, the court in Gardner

determined that the policy of protecting human life was clearly reflected in the constitution and in

several statutes, in that the protection of human life subordinates some constitutional rights and

serves as a defense against most criminal charges.

The Gardner court also examined whether permitting an employer to discharge an employee

under these circumstances would jeopardize the public policy. The court noted that, to establish such

jeopardy, the plaintiff employee must show that his conduct “directly relates to the public policy or

[is] necessary for the effective enforcement of the public policy . . .” and that “the threat of dismissal

will discourage others from engaging in the desirable conduct.” Id. at 384 (citing Perritt § 3.14 at

75-76) (emphasis in original).

In that case, the Gardner court found that the plaintiff employee “unquestionably rescued the

hostage from imminent life threatening harm.” Id. Because the plaintiff recognized the female as

a bank employee and looked around and saw no one else coming to her aid, the court determined that

he could have reasonably believed that the assailant was not engaged in a ploy to get him to leave

his armored vehicle and that there was a genuine threat to the bank employee’s life. Id. The court

found:

Gardner’s being fired for those actions will discourage similar future conduct in other

employees. If employers are allowed to terminate their employees for saving persons

from life threatening situations when the employee appears to be the only hope of

rescue, then the policy encouraging all citizens to engage in such conduct would be

jeopardized.

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Id. at 385.

In Gardner, the defendant armored car company argued that the causation element was not

satisfied because the plaintiff was not fired for rescuing the bank employee; rather, he was fired for

leaving the armored vehicle. The Gardner court rejected this reasoning and found that the causation

element was satisfied. Id.

Finally, the court in Gardner considered whether the defendant employer had a defense,

namely, an overriding justification for terminating the plaintiff’s employment “despite the

employee’s public-policy-linked conduct.” Id. at 385-86. The court noted that this element

“acknowledges that some public policies, even if clearly mandated, are not strong enough to warrant

interfering with employers’ personnel management.” Id. at 385. The court conceded that the

defendant armored car company put forth compelling justification for strict enforcement of its rule

prohibiting drivers from leaving their trucks. The Gardner court outlined the employer’s argument:

The rule is allegedly necessary to protect the safety and lives of [the defendant’s]

employees. The drivers are safe inside the compartments and they can use the

available two-way radio, public address system, and sirens to summon help. A

driver’s exiting the truck severs the partner’s lifeline to safety and renders both

employees more vulnerable to harm. . . . Defendant cited [an] incident where an

armored car driver got out of the truck in response to his partner being robbed. Upon

exiting the truck the driver was shot six times and killed.

A more specific reason for strictly enforcing the work rule involves the risk of

robbers using a ploy to get the driver out of the truck. . . . If robbers knew they could

trick drivers out of the truck every time it appeared someone was in need of help, the

occurrence of such ploys could increase. . . .

Id. Thus, the Gardner court stated, it was required to balance the public policies proffered by the

plaintiff employee against the defendant employer’s “legitimate interest in maintaining a safe

workplace and determine whether those public policies outweigh [the employer’s] concerns.” Id.

at 386.

The Gardner court declined to adopt a “broad good Samaritan doctrine” advocated by the

plaintiff employee, noting that the employer’s interests could not be “subjugated to a plethora of

employee excuses,” such as justifying tardiness or missed delivery deadlines because the employee

stopped to assist a motorist with car trouble. Rather, the Gardner court emphasized that its ruling

would apply only under a narrow set of circumstances:

The narrow public policy encouraging citizens to rescue persons from life threatening

situations clearly evinces a fundamental societal interest of greater importance than

the good samaritan doctrine. The value attached to such acts of heroism is plainly

demonstrated by the fact that society has waived most criminal and tort penalties

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stemming from conduct necessarily committed in the course of saving a life. If our

society has placed the rescue of a life above constitutional rights and above the

criminal code, then such conduct clearly rises above a company’s work rule.

Id. The Gardner court found that the armored car company’s work rule was not an overriding

justification for firing the plaintiff employee when his conduct directly furthered the public policy

encouraging citizens to save others from serious bodily injury or death. Id.

Therefore, while recognizing the importance of the employer’s legitimate work rule

forbidding drivers from leaving the armored vehicles, the Gardner court held that the employer was

prohibited from firing the employee “when he broke the rule because he saw a woman who faced

imminent life-threatening harm, and he reasonably believed his intervention was necessary to save

her life.” Id. In a separate concurring opinion, one Washington justice emphasized that the

exception to the at-will employment doctrine was to be applied only in the narrow instance in which

another’s life was in danger, commenting, “It defies what I believe is true about human nature that

anyone would be willing to watch a person die in order to comply with a company safety rule. I

believe our nature would cause any decent person, under these dire circumstances, to break the rule

and save the life.” Id. at 386-87 (Guy, J., concurring).

We find the reasoning in Gardner to be persuasive. Like most states, both Tennessee and

Washington adhere to the employment-at-will doctrine and nevertheless recognize an exception to

the at-will doctrine for the discharge of an employee for reasons that contravene public policy. See

id. at 379 (noting that “[a]lmost every state has recognized this public policy exception”). Like

Tennessee, Washington courts caution that “the exception should be narrowly construed in order to

guard against frivolous lawsuits.” Id. at 380 (citing Thompson v. St. Regis Paper Co., 685 P.2d

1081 (Wash. 1984)). Tennessee caselaw such as Sloan v. Tri-County Electric, supra, cautions

against courts pronouncing public policy where the legislature has declined to do so. However,

where public policy has been made manifest by statute or other legislative pronouncement, we must

recognize and honor it. This is no less true where, as in Crews, the conduct being encouraged and

protected is not mandatory, but permissive. Crews, 78 S.W.3d at 865.

Here, Tennessee’s public policy of placing a high priority on the sanctity of human life is

clearly evinced in its statutes. Conduct which otherwise would be prohibited is encouraged and

protected when undertaken to rescue another in mortal danger. Legislative immunity is granted for

such heroic actions in statutes such as Tennessee Code Annotated § 39-11-612, which absolves

citizens from criminal liability for using force to rescue or protect a third person when the citizen

“reasonably believes that the intervention is immediately necessary to protect the third person.”

T.C.A. § 39-11-612 (2003); see also § 39-11-504 (2003) (duress); § 39-11-621 (2003) (use of deadly

force by a private citizen); § 39-17-1322 (2003) (defenses to prosecution for an offense against

public health, safety, and welfare). These statutes evidence the unambiguous legislative intent to

pronounce the Tennessee public policy of encouraging citizens to rescue a person reasonably

believed to be in imminent danger of death or serious bodily harm, and to protect a citizen who

undertakes such heroic action from negative repercussions.

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As in Gardner, we decline to adopt a broad “Good Samaritan” doctrine protecting all conduct

undertaken in aid of another. Rather, the public policy demonstrated in the statute extends only to

situations in which the employee took action to rescue or protect another reasonably believed to be

in imminent danger of death or serious bodily harm. Such a narrow public policy exception is

unlikely to consume or eliminate the general rule favoring the employment-at-will doctrine. See

Harney, 784 S.W.2d at 923.

Taking the allegations in Little’s complaint as true, Little left Eastgate’s premises in order

to save another whom he reasonably believed was in such imminent danger of death or serious

bodily harm. This implicates Tennessee’s public policy of encouraging such actions and protecting

those who undertake them.

We are also convinced of the wisdom of adopting the analytical framework adopted by the

Gardner court for applying such a public policy exception, as helping to ensure that the exception

is narrowly applied and recognizing an employer’s legitimate need for latitude in making personal

decisions. As noted above, this framework requires the employee to prove (1) that the clear public

policy exists, (2) that discouraging the conduct in which the plaintiff engaged would jeopardize the

public policy, and (3) that the “public-policy-linked conduct” in fact caused the dismissal. Gardner,

913 P.2d at 382. The Gardner court recognized that, despite the importance of the public policy,

the employer may nevertheless have a compelling reason for discharging the employee.2 Therefore,

as part of the analysis, the employer is permitted to assert the defense of an “overriding justification”

for termination of the plaintiff’s employment.

Applying this analysis in this case, on remand, Little must prove that discouraging the

conduct in which he engaged would jeopardize the public policy, i.e., that firing an employee for

leaving the work premises in order to rescue someone in immediate danger of death or serious bodily

harm, would discourage others from taking action to save another. Little must also prove that “the

public-policy-linked conduct caused [his] dismissal. . . .” See Gardner, 913 P.2d at 382. Eastgate’s

asserted concerns that Little’s actions could expose Eastgate to potential liability would be

considered a defense, a claimed “overriding justification” for terminating Little’s employment.

In sum, we agree with the trial court’s recognition of a clearly-mandated public policy in

favor of encouraging citizens to rescue others reasonably believed to be in imminent danger of death

or serious bodily harm, and find that this public policy may be the basis for an exception to the at-

will employment doctrine in Tennessee. We also find that the complaint in this case states a claim

as to the other elements, namely, whether discouraging the employee’s conduct would jeopardize

this public policy, and whether the employee’s protected conduct caused the dismissal. The

employer may assert applicable defenses, such as whether it had an overriding justification for

discharging the employee. We believe this to be a narrow exception to the at-will doctrine, which

2

Indeed, in Gardner, as important as is the public policy recognized, the court acknowledged the compelling

nature of the employer’s justification for enforcing its policy of requiring its armored vehicle drivers to stay inside the

vehicle. Gardner, 913 P.2d at 385.

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will not overly burden an employer’s ability to enforce work rules and make personnel decisions.

Accordingly, we affirm the trial court’s decision to deny Eastgate’s motion to dismiss.

The decision of the trial court is affirmed, and the cause is remanded for further proceedings

not inconsistent with this Opinion. Costs on appeal are to be taxed to Appellant Eastgate of Jackson,

LLC, d/b/a Eastgate Discount Beer & Tobacco, and its surety, for which execution may issue, if

necessary.

___________________________________

HOLLY M. KIRBY, JUDGE

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