employee’s insistence that his former “department is poorly run” did “not even approach the subject of statutory or regulatory violations.”
How later courts described this case
- employee’s insistence that his former “department is poorly run” did “not even approach the subject of statutory or regulatory violations.”
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
May 4, 1998
Cecil Crowson, Jr.
JEFF HUBRIG, ) Appellate C ourt Clerk
)
Plaintiff/Appellant ) ANDERSON CIRCUIT
)
v. ) NO. 03A01-9711-CV-00525
)
LOCKHEED MARTIN ENERGY ) HON. JAMES B. SCOTT
SYSTEMS, INC.; ) JUDGE
LINC HALL, Individually; )
LARRY PIERCE, Individually, )
and JIM KOLLING, Individually, )
) AFFIRMED
Defendants/Appellees ) and REMANDED
A. Philip Lomonaco, Knoxville, and Kathleen E. McGeechan, Kingston, for
Appellant.
G. Wilson Horde and Patricia L. McNutt, Oak Ridge; E. H. Rayson and John C.
Burgin, Jr., Knoxville, for the Appellees.
OPINION
INMAN, Senior Judge
The plaintiff describes himself as a whistle blower, as that term has come
to be used, and seeks damages for his termination from employment because he
allegedly refused to participate in and keep silent about certain allegedly illegal
corporate activities. The allegations were denied by the defendants whose
motion for summary judgment was granted. The plaintiff appeals and presents
for review the issues of (1) whether he was terminated for time card abuse and
sexual harassment or whether these reasons were pretextual, (2) whether a
common law cause of action for retaliatory discharge remains viable in this
jurisdiction, and (3) whether his termination constituted outrageous conduct by
the defendants. Our review of the findings of fact made by the trial Court is de
novo upon the record of the trial Court, accompanied by a presumption of the
correctness of the finding, unless the preponderance of the evidence is
otherwise. TENN. R. APP. P., RULE 13(d). See, Byrd v. Hall, 847 S.W.2d 208
(Tenn. 1993). We will refer to the plaintiff as Hubrig, or as the appellant, or as
the plaintiff. This record is unusually prolix; prima facie, it appeared to reflect a
trial by affidavit, an impermissible use of RULE 56, see: Womack v. Blue Cross-
Blue Shield, 593 S.W.2d 294 (Tenn. 1980), but an in-depth analysis reveals that
the trial court correctly held that the totality of the evidence demonstrates the
absence of a genuine issue of fact or law. We therefore affirm the judgment.
I
Lockheed Martin Energy Systems, Inc. managed and operated three
government-owned facilities in Oak Ridge, Tennessee pursuant to a contract
with the United States Department of Energy [“DOE”], one of which is known
as the Oak Ridge National Laboratory [“ORNL”].
The plaintiff was employed in the Applied Technology Division [“ATD”]
of ORNL from 1988 through 1991. In a memo dated April 18, 1991, he asked
ATD Director Dean Waters to be “relieved of my current assignment” pending
an investigation into allegations made against him, and expressed his regret that
he had been unable to win the “proactive support of your staff” because a
member of Waters’ staff had “actively campaigned” against him “without
consequence” resulting in “allegations of misconduct of office which are
completely false and without merit.” These allegations will be discussed later.
After meetings with Waters, the plaintiff filed a formal complaint on
December 30, 1991 with ORNL Site Review Board alleging that Waters had
harassed him beginning April 19, 1991 and that there were “project
management problems, including cost overruns, incomplete or missing project
2
plans, and disagreement with sponsors over deliverables and schedules of
performance.” These charges led to two investigations, one relating to the
treatment of the plaintiff and the other to the manner in which work had been
conducted by that division.
A five-person Site Review Board investigated the plaintiff’s complaint
alleging mistreatment by Waters, while the Central Auditing Division examined
his allegations of mismanagement. The Site Review Board, after conducting 35
to 40 interviews, issued a response to the plaintiff on July 22, 1992, concerning
his complaint of ill-treatment by Waters, and found that Waters had engaged in
inappropriate management conduct but that Hubrig “could have directly
contributed to [his] situation . . . by [his] management style, interpersonal
interactions, and [his] blind loyalty to Waters . . ..” Remedial actions were
specified. A more detailed report was submitted to Energy Systems’
Management, which stated that the facts supported “Hubrig’s allegations . . . of
harassment,” and that “Waters exercised poor judgment when he allowed
Hubrig’s autocratic and control-oriented management style to lead to alienation
of managers and staff.” It recommended an “immediate study of management
practices.” 1
The lengthy report of the Central Auditing Division reviewed Hubrig’s
allegations of mismanagement and found several of them to be valid.
Before the Site Review Board issued its report, the plaintiff, then working
as a Quality Assurance Specialist, by letter dated July 15, 1992, requested a
meeting with Energy Systems President, Clyde Hopkins. He enclosed
1
Hubrig expressed dissatisfaction with the response in a letter dated August 31, 1992, but took no
further action. Among other things, he objected to the finding in the response, suggested by cou nsel, that Waters
had engaged in “inappropriate managerial conduct” rather than “harassment.” ORNL Director Trivelpiece sent
Hubrig a letter apologizing for the “unfair treatment to which you were subjected” and his performance appraisal
rating was increased to a “consistently exceeds” level. Trivelpiece later wrote Hubrig saying that he considered
the matter closed.
3
documents about “critical issues” and “career objectives,” and informed
Hopkins of his objective “to facilitate remediation of the dysfunctional
management practices within the Applied Technology Division” and to be
reassigned to a “job position consistent with my position history . . ..” Hopkins
directed Robert Merriman, the Vice President of Energy Systems’
Environmental Restoration and Waste Management Business Unit, to find a
suitable position for Hubrig. Merriman asked Linc Hall, then Plant Manager at
K-25, to consider Hubrig. Hall, after reviewing Hubrig’s qualifications,
appointed him Director of the newly-formed Institutional Planning and
Facilities Management Division. The appointment was announced on August
31, 1992, more than two years before Hubrig’s resignation.
Plaintiff remained Director of the Institutional Planning and Facilities
Management Division from September 1, 1992 until February 1, 1994, at which
time, as part of a reorganization to reduce the cost of operations at K-25, three
organizations were eliminated. The work of Institutional Planning and
Facilities Management was consolidated with another program, and Marvin
Baer was appointed to head the newly consolidated division. Robert Eby was
then Plant Manager of K-25. Eby made the decision to appoint Baer on the
basis of Baer’s experience and his judgment that Baer was the better manager.
Eby believed that Hubrig had not performed well in the position for reasons
unrelated to Hubrig’s problems at the Applied Technology Division, of which
Eby had not been informed. This decision was approved by Linc Hall, Vice
President of Environmental Restoration and Waste Management. As a result of
this reorganization, Hubrig became a member of Linc Hall’s staff in the
4
Environmental Restoration Waste Management Business Unit, a move which
did not affect his compensation or job level.
Hubrig says that shortly after he began his new position, Hall directed
him to “coordinate appropriate changes to ensure ‘verbatim worker compliance’
with ‘flowdown’ requirements within the Environmental Restoration Program at
K-25.” Hubrig contends he engaged in protected activity by reporting corporate
failure to protect workers. He relies upon findings of the Defense Nuclear
Facilities Safety Board which were issued months after Hubrig was given his
assignment by Hall but which also refers to issues at the Y-12 plant and not the
K-25 plant where Hubrig worked. In this connection, the appellees argue that
assertions in Hubrig’s affidavit are either not based upon his own personal
knowledge or reflect his own inferences drawn from ambiguous facts or from
statements taken out of context.2 More about this later.
It is not disputed that Linc Hall authorized the plaintiff to participate in
an “Improvement Team” program in which Hubrig acknowledged that he
enlisted the assistance of two subcontractor employees, Carol Hockett and Mary
Hutson, as well as other employees.
In the summer of 1994, Hall learned that Hubrig was not regularly
reporting for work and was not remaining at work for the required hours and
was often seen in the company of Carol Hockett. He discussed these allegations
with Larry Pierce, the Director of Human Resources at K-25, and after a
preliminary examination of Hubrig’s time cards, requested Central Auditing,
headed by defendant Jim Kolling, to investigate the validity of the allegations.
2
The plaintiff asserts in his affidavit that his team inadvertently started to “discover and document
managerial negligence by Linc H all’s . . . direct employees” and mak es an ambiguous reference abo ut a “failure
to com ply with p rocedu re and reg ulation.”
5
The audit was completed in November 1994. It disclosed many
irregularities in Hubrig’s time cards, together with inaccurate arrival, lunch and
departure times. Significantly, the audit documented ten unrecorded absences
in January, March, May, and June, 1994, and documented instances where
Hubrig’s explanations were inconsistent with his own previous statements and
directions to other employees, as, for instance, an occasion when he directed his
secretary to “forward my time card for each month to me as soon as it is
received” and that he would “complete the time card.” The auditors concluded
this statement contradicted Hubrig’s assertions that he did not understand the
time card system. Another example of an inconsistency concerned Hubrig’s
erratic time for reporting to work. His explanation was that he was unaware
that he had a shift schedule.
The audit also examined whether Hubrig had a pattern of taking
excessive lunch breaks and whether he had a pattern of leaving work early. The
auditors found he often left work early and that his explanation - that he worked
about a third of his overtime at home - was unsupported by documentation
Hubrig said he could provide to them but did not.3 For these and a number of
other reasons, the audit concluded the foregoing constituted violations of
company policy and procedures on hours of work and was inappropriate
behavior for any Energy Systems employee. The plaintiff offered the off-setting
defense that he frequently reported for work earlier than required.
The time card audit also involved the activities of Carol Hockett, then age
25, who was supervised by Hubrig and frequently seen in his company leaving
3
The au ditors also co ncluded that for Hu brig to ha ve wor ked the a moun t of overtim e he claim ed to
have w orked w ould ha ve requ ired that he leave the K -25 facility b etween 8:30 p.m . and 10 :30 p.m . And w hile
Hubrig told the auditors on average he left the facility at those times, he had also inconsistently informed the
auditors that he normally left work either between 4:00 to 4:30 p.m. or between 7:00 to 7:30 p.m. The earlier
departu re times w ere, mo reover, co nfirmed by Ms . Hocke tt, who told the audito rs that Hub rig usually left with
her at that time.
6
the plant and elsewhere. She was questioned during the audit, and it came to
light that she had more than a working relationship with Hubrig, who was
married. Complaints of sexual harassment made by Carol Hockett and Mary
Hutson to the Energy Systems’ Ethics Office on November 23, 1994 were the
critical developments in conjunction with the time card problems that led to
Hubrig’s resignation. The complaints by Hockett and Hutson against Hubrig
appear to represent the point that sometimes the best defense is a good offense.
Ms. Hockett stated to Ethics Officer Barbara Ashdown that, during her
relationship with Hubrig, they would meet off site, at restaurants and elsewhere,
including the parking lot at K-25, for extended periods. They also met in her
condo and in a motel bedroom. Hubrig gave her a ring and sent her notes
expressing affection. Hockett explained that the relationship was “personal”
and that Hubrig wanted her to be an administrative assistant in a business he
had in mind but which never materialized. She had attempted to break off the
relationship several times prior to the audit, as far back as December 1993, but
on each occasion Hubrig “shunned” her and “would ignore” her, “provide no
work direction, and exclude her from meetings.” She said she resumed the
relationship “due to the uncomfortable work environment.”
Ms. Hockett told Ms. Ashdown that, on September 26, 1994, after the
time card audit had commenced and because she was embarrassed at how others
saw her in her relationship with Hubrig, she told Hubrig she would have
nothing further to do with him “outside the fence,” i.e., outside of her normal
job duties. She also related to Ms. Ashdown that soon after this discussion with
Hubrig his reprisals started anew and that they continued to the point she
believed it necessary to make her complaint. She was excluded from team
7
meetings and was told by Hubrig that he “would not continue to provide me
with opportunities for visibility or be able to support me much longer in my
current job.” In late October, Hubrig arranged to have a “team building
facilitation” conducted by Energy Systems’ employee Vivian Marshall with
himself, Ms. Hockett, and Mary Hutson in attendance. Ms. Hockett described
the meeting in this way:
During this meeting, we were all asked what it would take to continue
working as a team. I indicated that I needed to separate “inside” the
fence activities from “outside” the fence activities. Hubrig responded
that those activities were “seamless.” Vivian called a caucus with
Hubrig. The meeting reconvened, and Hubrig agreed that the team
would function dealing only with “inside” the fence activities.
Hubrig stated in front of others, i.e., Mary Hutson and Vivian
Marshall [CCE facilitator for Team Building], that I had betrayed the
team. What he meant was that I had personally betrayed him by
ending our personal relationship.
Soon after this meeting, Ms. Hockett stated that she again was excluded
from normal team activities, and related the incident that caused her to seek help
and make her complaint:
On November 17, 1994, Hubrig and I had a discussion about
my work status. Hubrig said that he could not continue to work like
we had been and indicated that he would not have a problem telling
the Corporation that I was pursuing other employment. I told him
that I wanted to continue working at Energy Systems. He said that we
might need to clarify our understanding as to what had happened
related to our relationship. Hubrig said for him to be able to feel that
I had not betrayed his trust, it was necessary that we have a
“seamless” relationship. He indicated that he did not want me to meet
alone with Vivian Marshall and that if I wanted to keep my job, I
needed to get the Corporation off his back.
Ms. Hutson went with Ms. Hockett to the meeting with Ms. Ashdown.
She had observed Ms. Hockett’s exclusion from team activities and told Ms.
Ashdown the exclusion had been directed by Hubrig. Ms. Huston also said that
Hubrig began spending literally days with her in talking about Ms. Hockett and
that he started walking Ms. Hutson to her car several times a week, telling her
8
that she was “the only one who was keeping him going and that he needed my
support and loyalty.” This continued until Ms. Hutson told him that she could
no longer speak with him about Ms. Hockett since it was causing her emotional
distress. Ms. Hutson said, however, that on November 17, Hubrig called her at
her home expressing concern over Ms. Hockett’s plan to meet alone with
Vivian Marshall. Ms. Hutson told Ms. Ashdown that, despite her entreaties to
Hubrig that he desist, “Hubrig has persisted to harass me by inappropriately
discussing personal issues with me, calling me at home, following me to my car,
and talking of personal matters even though I have requested him to stop doing
so. He has begun calling me names he used to call Hockett such as kiddo,
coach, counselor. He has used me and the corporation and even used team
facilitation to try to regain his personal relationship with Hockett. For the past
eight weeks very minimal work has been performed, with the majority of time
spent in discussions related to Hockett.”
The investigation of these complaints, along with the time at work audit,
was reported to Hall and Pierce. On December 1, 1994, they and Kolling met
with Hubrig to discuss the results of the audit in which plaintiff’s time card and
work time irregularities were found. Hubrig was informed that the audit report
disclosed substantial variances in his time at work as recorded and his actual
time at work, and that the time card abuse was an extremely serious matter.
Plaintiff denied any intent to defraud the company and stated that he was
ignorant of the timekeeping method, an explanation that Hall found incredible.
The plaintiff was reminded that he was a senior manager and of all the training
that he had received relative to timekeeping and attendance at work.
9
Hubrig does not seriously disagree about this meeting, although he stated
that he “did not clearly understand what was being said,” and asked for “further
clarification” which was denied. According to his own affidavit, however, he
had already met with the auditors three times for a total of eight hours and had
discussed the matter with them over the telephone on at least six occasions.
On December 2, 1994, Ms. Hockett and Ms. Hutson provided Ms.
Ashdown with signed statements about their harassment by Hubrig. This
information was provided to Linc Hall and Larry Pierce, who met with Energy
Systems’ President Gordon Fee, Vice President Mack Wilson, Robert Worrell
of Human Resources, General Counsel G. Wilson Horde, and Deputy General
Counsel Patricia L. McNutt to discuss Hubrig’s situation. Hall, Pierce and
Wilson recommended that if the allegations of sexual harassment were credible,
Hubrig should be terminated with instructions that Ms. Ashdown speak with
Ms. Hockett again and that Hubrig be given an opportunity to respond to the
allegations.
Four days later, Hall and Pierce, along with Bruce Kimmel [for whom
Hubrig was working at the time], met with Hubrig, who was informed of the
charges by the two female employees and was given an opportunity to make any
explanation he wished. Larry Pierce’s notes of the meeting reflect the
following:
A meeting was held in Linc’s office to confront Hubrig with the
allegations made by the two women. Present were Linc [Hall], Larry
[Pierce], Jeff [Hubrig], and Bruce Kimmel, for whom Hubrig has been
working during the last several months. Linc explained the purpose
of the meeting, and Larry proceeded to summarize the allegations of
both parties. He worked from the two yellow sheets attached and
Numbered 2 and 3. He characterized the allegations as extremely
serious. Hubrig once again denied any wrongdoing whatsoever. He
repeatedly used flowery descriptors like “leadership venture,”
“leadership journey,” “lines of inquiry,” and “shared vision.” He
10
basically explained away Hockett’s allegations by stating that she
could not decide whether she wanted to stay or leave. Hubrig
portrayed himself as being concerned only with the welfare of the
team and the work to be performed. With respect to Hutson, he flatly
denied her allegations of wasting time and following her to the
parking lot. Hubrig was never pressed on specifics except on two
occasions. Larry asked if he had spent up to one hour in the parking
lot talking to Mary during the time the audit was transpiring. He
stated, “I don’t recall.” When asked if he had accompanied her to the
parking lot prior to the beginning of the audit, he again stated, “I
don’t recall.” He portrayed Hockett and Hutson as being devastated
by the audit, wishing to distance themselves from Jeff Hubrig.
During this meeting he alluded to the fact that Don White, an ER
employee overseeing their work, could attest to Hockett’s unusual
behavior of recent days. Linc told Jeff that these matters were serious
and that the former could be terminated. Hubrig asked if he needed
to get an attorney or take other action. Hubrig wanted more time to
respond to the allegations. The meeting ended at approximately 3:15
p.m. Hubrig asked for one minute alone with Linc at the end of the
meeting.
Hubrig’s version of this meeting is not materially different. He
acknowledges being told that he was not to see the two female employees again
either “inside or outside the fence.” He says that he asked for “specific details
and the opportunity to provide evidential proofs that the allegations of
harassment were unfounded” but was denied this request. He also stated that he
“could not clearly understand the allegations.” At the conclusion of the
meeting, plaintiff was informed that the facts would be carefully weighed and
that the company would make a decision within a few days and then get back
with him.
In his affidavit, Hubrig says that he was not given details and thus was
not permitted to provide ‘evidential’ proof that the allegations were unfounded.
The affidavit (written after each of his accusers had been deposed) significantly
does not deny having a “personal relationship” or friendship with Ms. Hockett
nor her assertion that he treated her “differently” after she tried to break off
their affair. Hubrig says in his brief that he and Ms. Hockett enjoyed a
11
“consensual and mutually beneficial relationship” and that after it ended in
September 1994 “he was distraught, continually requesting reconsideration, and
seeking help from others to understand Hockett’s actions.” He does not deny
Ms. Hockett’s assertion that he excluded her from team meetings or told her that
he would not continue to provide her with opportunities for “visibility” and
would be unable to support her in her current job. While Hubrig denies having
had sexual intercourse with Hockett (which is consistent with her testimony as
well) and denies having had a romantic relationship with her, he admits that on
at least one occasion, he and Ms. Hockett rented a motel bedroom together, in
Hockett’s name, for the purpose of deciding whether that room was fit for use
as a meeting place for his business, and further admits that he gave her a ring
for her 25th birthday.
Continuing the saga, Ms. Ashdown and Sandy Davis of the Human
Resources Department met with Ms. Hockett on December 7 to review the facts
with her. Hockett reiterated that her relationship with Hubrig had not involved
sexual intercourse but was one of “heavy intimate personal contact” which
generally occurred off the work site usually in a park or a car after work.
Hockett told Ashdown that Hubrig’s exclusion of her from normal work
activities led her, in November, to conclude that she needed to seek other
employment and that if she was going to continue in her current position she
would have to have a personal relationship with Hubrig.
Based on Ashdown’s report and the prior reports and audit, Energy
Systems’ senior management, including Hall, Pierce and President Fee,
concluded that it was necessary to terminate the plaintiff, who, in the meantime,
had been hospitalized with chest pains and was absent from work until early
12
January 1995, when he returned. Hall and Pierce met with him on January 4,
1995, and informed him that management had reviewed the findings discussed
with him in previous meetings and had concluded it was necessary to terminate
his employment. Hubrig was informed that Energy Systems had decided to
terminate his employment because of the violations relating to the time cards
and his involvement with Hockett and the other subcontractor employee. Pierce
said, “I explained, when asked, that Jeff [Hubrig] had specifically tied Ms.
Hockett’s continued membership on the ‘team’ to continuing their outside
relationship.” Hubrig again denied any wrongdoing but Pierce “stated clearly
that, ‘the debate is over’.”
Hall advised plaintiff that the termination was not reflective of his
“work,” but dealt with his conduct and actions that had been explained to him.
Plaintiff was given the opportunity to resign which he accepted. At the
conclusion of the meeting, Hall shook plaintiff’s hand and wished him well.
II
Byrd, supra, directs that the following determinations should be made in
ruling on a motion for summary judgment: (1) whether a factual dispute exists;
(2) whether the disputed fact is material to the outcome of the case; and (3)
whether the disputed fact creates a genuine issue for trial. “[T]he burden then
shifts to the nonmoving party to set forth specific facts . . . establishing that
there are indeed disputed, material facts creating a genuine issue.” Id. A
genuine issue exists only if a “reasonable jury could legitimately resolve that
fact in favor of one side or the other.” Id. At 215.
Hubrig argues that he established a genuine issue of material fact as to
the honesty of the defendants’ belief that he engaged in time card abuse and
13
harassment of two female employees. We disagree, because this contention
finds no support in the record, which clearly reveals that his own misconduct
was the sole cause for his termination.
T.C.A. § 50-1-304 as pertinent provides:
(a) No employee shall be discharged or terminated solely for refusing
to participate in, or for refusing to remain silent about, illegal
activities.
(b) As used in this section, “Illegal activities” means activities which
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.
(c) Any employee terminated in violation of subsection (a) shall have
a cause of action against the employer for retaliatory discharge and
any other damages to which the employee may be entitled.
Under T.C.A. § 50-1-304, an employee claiming he was discharged
because he refused to remain silent about “illegal activity” must show that this
was the sole reason for his discharge. Griggs v. Coca-Cola Bottling Co., 909
F.Supp. 1059, 1065 (E.D. Tenn. 1995). An employee must show “an exclusive
causal relationship” between the discharge and protected activity, Id., citing
Merryman v. Central Parking System, Inc., 1992 WL 330404 (Tenn. Ct. App.
1992), and Leeman v. Edwards, 1994 WL 560889 (Tenn. Ct. App. 1994) (both
overruled on other grounds), Mason v. Seaton, 942 S.W.2d 470 (Tenn. 1997).
The elements are as follows:
(1) the plaintiff’s status as an employee of the defendant;
(2) the plaintiff’s refusal to participate in, or to remain silent about,
illegal activities;
(3) the employer’s discharge of the employee;
(4) an exclusive causal relationship between the plaintiff’s refusal to
participate in or remain silent about illegal activities and the
employer’s termination of the employee.
14
Merryman. According to Mason, the second element requires a showing that
the employee spoke out about illegal activities in the workplace. An instruction
to remain silent is not required.
We agree with the appellee that this record reveals no genuine issue of
material fact as to the reason for Hubrig’s termination. In Mason, the Supreme
Court held that T.C.A. § 50-1-304 initially requires the employee to submit
evidence of a causal link between the protected act and the employee’s
discharge, which then imposes upon the employer the burden of showing the
reason for the discharge. Mason, 942 S.W.2d at 473. The record is clear that
Energy Systems proved a legitimate, non-pretextual reason for discharging
Hubrig: the audit findings with respect to his improper time card charges and
the charges of sexual harassment which were credited. The burden then became
Hubrig’s to show that the reason was pretextual, meaning “a phony reason for
some action.” Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). In
order to defeat summary judgment Hubrig must present specific admissible facts
which realistically challenge the defendants’ stated reasons. Wilkins v. Eaton
Corp., 790 F.2d 515, 521 (6th Cir. 1986); Silpacharin v. Metropolitan Gov’t.,
797 S.W.2d 625, 629 (Tenn. App. 1990).
Conclusory statements of the employee do not constitute proof of pretext.
We recently held that the employee’s “subjective interpretation of [the
employer’s] actions does not create an issue of fact sufficient to defeat a
properly supported summary judgment motion. DeVore v. Deloitte & Touche,
01A01-9602-CH-00073 (Tenn. App. 1998); Accord, McCain v. Airport Honda,
1996 WL 557794 (Tenn. App. 1996).
15
The material issue here is not whether Hubrig actually sexually harassed
Hockett and Hutson; rather, “the inquiry . . . is limited to whether [the decision
makers] believed [the employee] was guilty of harassment.” Elrod v. Sears,
Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991); Timm v. Mead Corp., 32
F.273, 275 (7th Cir. 1994) (“It is always the employer’s honestly held beliefs
that control.”)
These principles clearly apply here. According to the Supreme Court in
Mason:
“The cause of action for retaliatory discharge defines the balance
point between the employment-at-will doctrine and rights granted
employees under well-defined public policy.” Anderson v. Standard
Register Co., 857 S.W.2d at 556; Reynolds v. Ozark Motor Lines,
Inc., 887 S.W.2d 822, 824 (Tenn. 1994). Employment-at-will is the
fundamental principle controlling the relationship between employers
and employees. That principle was stated in Harney v. Meadowbrook
Nursing Center, 784 S.W.2d 921, 922 (Tenn. 1990), as follows: “The
long standing rule in this State is that an employee-at-will may be
discharged without breach of contract for good cause, bad cause or no
cause at all, without being thereby guilty of legal wrong.” This
doctrine recognizes that employers need the freedom to make their
own business judgments without interference from the courts. “[A]n
employer’s ability to make and act upon independent assessments of
an employee’s abilities and job performance as well as business needs
is essential to the free-enterprise system.” Clifford v. Cactus Drilling
Corp., 419 Mich. 356, 353 N.W.2d 469, 474 (1984). However, even
under the common law, an employee is protected from discharge in
retaliation for attempting to exercise a statutory or constitutional
right, or in violation of a well-defined public policy. See e.g.,
Conaster v. Clarksville Coca-Cola, 920 S.W.2d 646 (Tenn. 1995);
Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822 (Tenn. 1994);
Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn. 1993);
Hodges v. S. C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992); Chism v.
Mid-South Milling Co., 762 S.W.2d 552 (Tenn. 1988); Clanton v.
Cain-Sloan Co., 677 S.W.2d 441 (Tenn. 1984).
Mason, 942 S.W.2d at 474; accord, Stein v. Davidson Hotel Co., 945 S.W.2d
714, 717 (Tenn. 1997).
Hubrig’s asserted misconduct as a supervisor towards both female
employees subjected Energy Systems to potential civil liability to them had they
16
chosen to pursue a “hostile work environment” theory. Campbell v. Florida
Steel Corp., 919 S.W. 2d 26, 33 (Tenn. 1996); Spicer v. Beaman Bottling Co.,
937 S.W.2d 884 (Tenn. 1996); see also Pierce v. Commonwealth Life Insurance
Co., 40 F.3d 796 (6th Cir. 1994). As heretofore stated, Ms. Hockett informed
the company that after she tried to break off her relationship with Hubrig, he
excluded her from team meetings and told her that he would not continue to
provide her with opportunities for “visibility” and would not support her in her
current job. The defendants cannot be faulted for taking “prompt and effective
remedial relief,” because Hubrig had been credibly accused by two female
employees. Given the current legal climate, this conduct could not be
condoned, particularly in light of the painstaking investigation of the charges.
Moreover, Hubrig’s retaliation against Hockett for terminating their
relationship potentially subjected Energy Systems to a quid pro quo harassment
lawsuit. “The employer is strictly liable for a supervisor’s quid pro quo
harassment under the doctrine of respondeat superior.” Carr v. United Parcel
Service, 955 S.W.2d 832, 837 (Tenn. 1997); Sanders v. Lanier, _____S.W.2d
_____(Tenn. 1998).
An employer’s obligation to eliminate unlawful harassment from the
workplace requires the employer to take action once it knows of the harassing
conduct even if the conduct does not rise to the level of being actionable by the
harassed employee. As observed in Chalmers v. Quaker Oats Co., 61 F.3d
1340, 1346 (7th Cir. 1995), if an employer’s harassment policy was not
consonant with federal law, the employer would be “hamstrung in its efforts to
take measures to stop such conduct before it became so abusive and offensive
that the company was vulnerable to a Title VII lawsuit.”
17
As we have seen, Energy Systems conducted an investigation and found
both women’s claims credible, as contrasted to Hubrig’s “non-denial denials”
and “flowery descriptors.” Having made these findings, Energy Systems was
clearly justified in taking action reasonably calculated to prevent any future
harassment.
Whether the employer is liable for its supervisor’s actions in hostile
work environment claims depends on: (1) whether the supervisor’s
harassing actions were foreseeable or fell within the scope of
employment; and (2) even if they were, whether the employer
responded adequately and effectively to negate liability.” Pierce v.
Commonwealth Life Ins. Co., 40 F.3d 796, 803 (6th Cir. 1994).
Accordingly, the employer’s liability is predicated on its reaction to
the discriminatory conduct.
Carr, 955 S.W.2d at 838. Energy Systems argues, and we agree, that it had the
right to act and the right to conclude that it should terminate an employee given
to such conduct, even if it believed the women were not going to file an action
against it.
The record is clear that the decision to terminate Hubrig was influenced
also by the audit of his time cards and by his evasive and vague responses to
both the time card and sexual harassment charges. The time card audit was
headed by Linda Chappell, a CPA employed by the company, who reviewed the
relevant time records, and interviewed the plaintiff and other employees,
including Ms. Hockett, as part of the audit. She heard every contention the
plaintiff claims he was not permitted to make to Larry Pierce and Linc Hall.
Hubrig does not deny that he had not reported paid absences on his time cards,
as reported by the auditors:
In conclusion, our review substantiated the allegation that Mr. Hubrig
did not accurately report the hours he worked (eight days of
unrecorded vacation and two days of unrecorded sick leave).
Although Mr. Hubrig’s late arrivals, early departures, and excessive
lunch breaks did not have to be recorded on his time card, they were
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violations of company procedures and standards, including Energy
Systems Procedure CP-153, Hours of Work; Energy Systems
Standard ESS-AC-103, Internal Time Administration; Energy
Systems Procedure ESP-LR-251, Personal Leave; and Energy
Systems Procedure LR-201, Attendance and Absence Monitoring. In
our opinion, the ten unrecorded absences and violations of basic
procedures indicate a pattern of behavior that is inappropriate for any
Energy System employee.
The plaintiff’s suggestion that the defendants somehow manufactured
“trumped up charges” of “illusory time card abuse” and harassment at the
highest levels of the company is unsupported rhetoric, and does not create a
genuine issue of material fact.
The plaintiff asserts that he did nothing which “merited termination,” a
wholly subjective declaration. He was an at will employee, and Energy Systems
was not required to have “just cause” to terminate him. Chalmers, 61 F.3d at
1346. As stated in Mason v. Seaton, “employers need the freedom to make their
own business judgments without interference from the courts.” 942 S.W.2d at
474.
Hubrig did not establish that his claimed protected activities were the
“sole” reason for his termination/resignation, or that those activities played any
role in his termination/resignation.
III
Hubrig asserts that the trial court should have allowed him to amend his
complaint to assert a common law cause of action for damages for retaliatory
discharge, on the theory that the common law right survived the passage of
T.C.A. § 50-1-304.
Tennessee courts have recognized two different actions for damages for
“retaliatory discharge.” The first action recognized in Tennessee was for
asserting a claim for workers’ compensation benefits. Clanton v. Cain-Sloan
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Co., 677 S.W.2d 441, 445 (Tenn. 1984); accord Conaster v. Clarksville Coca-
Cola, 920 S.W.2d 646 (Tenn. 1995). In Harney v. Meadowbrook Nursing Ctr.,
784 S.W.2d 921, 922 (Tenn. 1990), the court emphasized that its decision had
not created a new exception to the employment at will doctrine, but “merely
recognized that implicit within the provisions of T.C.A. § 50-6-114 a cause of
action existed . . ..”
The Court considered another action for retaliatory discharge in Chism v.
Mid-South Milling Co., Inc., 762 S.W.2d 552, 555, 557 (Tenn. 1988), and
shortly thereafter in Watson v. Cleveland Chair Co., 789 S.W.2d 538, 544
(Tenn. 1989). Despite the fact that the Court upheld the dismissal of the claims
in both cases, in Watson, the Court stated that:
We have expressed our accord with the opinion of the Court of
Appeals, that a cause of action for retaliatory discharge arises when
an at-will employee is terminated solely for refusing to participate,
continue to participate, or remain silent about illegal activities.
In response to these two decisions, the General Assembly enacted T.C.A. § 50-
1-304.
By its plain terms, the statute does not cover the first type of retaliatory
discharge claims - where the employee claims to have exercised a statutory right
to benefits. For those kind of claims, the common law cause of action continues
to exist, Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn. 1993), and
employees need only show that their exercise of the statutory right to workers’
compensation benefits was a “substantial factor” in their termination. Id.
Prior to the passage of T.C.A. § 50-1-304, the appellate courts had not
clearly settled on whether a plaintiff was required to show that protected
activity was either a substantial factor or the sole cause of termination. But the
statute supplied the answer; it clearly requires the employee to show that the
20
sole cause of his termination was his refusal to remain silent about illegal
activities in the workplace.
The appellant argues that the “element of causal nexus” may have a lower
threshold of proof at common law than under the statute, thus justifying the
amendment. The issue of whether the statute displaced any common law claim,
or is merely cumulative, see: Reynolds v. Ozark Motor Lines, 887 S.W.2d 822
(Tenn. 1994), is not crucial. The burden of proof is the same and does not shift.
The issue is the same under either theory.
IV
In order to make a prima facie case under the statute, an employee must
show that he spoke out about or refused to participate in “illegal activities.”
Since the plaintiff does not contend he refused to participate in illegal activities,
he must show he spoke out about “activities which 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.” T.C.A. § 50-1-304(b).
We agree with the appellee that the activities he complains of in his affidavit do
not constitute illegal activity. See, Chism, supra.
When the plaintiff became a member of Linc Hall’s staff in February
1994, he was assigned the task of developing certain work standards and
requirements to be used in implementing procedures. He asserts in his affidavit
that his “team” had discovered and begun to document “managerial negligence”
by Linc Hall and others. But “managerial negligence” is not an “illegal
activity.” Robins v. Flagship Airlines, Inc., 956 S.W.2d 4, 7(Tenn. App. 1997)
(employee’s insistence that his former “department is poorly run” did “not even
approach the subject of statutory or regulatory violations.”) What is more, the
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document relied upon by Hubrig to support this claim merely states that “It has
been determined that some upper-level tier requirements that have been brought
down have no clear guidelines defined. One concern appears to be regarding
the lack of attention devoted to this issue by the ERWM [Environmental
Restoration Waste Management] Quality Programs Office.”
V
We do not consider it necessary to discuss the claim of outrageous
conduct. The record is wholly devoid of any evidence which remotely suggests
that the defendants engaged in such conduct.
VI
Finally, in Carr v. United Parcel Service, 955 S.W.2d 832 (Tenn. 1997),
the Supreme Court made it clear that the definition of employer in T.C.A. § 50-
1-304 did not impose individual liability on supervisors. Thus, none of the
individual defendants can be liable on the theory that they terminated the
plaintiff’s employment.
The judgment is affirmed at the costs of the appellant.
__________________________________
William H. Inman, Senior Judge
CONCUR:
________________________________
Houston M. Goddard, Presiding Judge
________________________________
Herschel P. Franks, Judge
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