Thompson v. Woodbury Veterinary Hospital

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

CAITLIN THOMPSON, )

)

Plaintiff, )

) NO. 3:23-cv-00249

v. )

) JUDGE CAMPBELL

WOODBURY VETERINARY HOSPITAL ) MAGISTRATE JUDGE NEWBERN

and COFFEE VETERINARY HOSPITAL, )

)

Defendants. )

MEMORANDUM

Pending before the Court is a joint motion for summary judgment filed by Defendants

Woodbury Veterinary Hospital and Coffee Veterinary Hospital (Doc. No. 44), and a motion for

summary judgment filed by Plaintiff Caitlin Thompson. (Doc. No. 50). These motions are fully

briefed. (See Doc. Nos. 44-2, 51, 55, 57, 58, 60, 61). As required by Local Rule 56.01, the parties

each filed a statement of undisputed material facts (Doc. Nos. 44-1, 52) and response to the

statements of fact (Doc. Nos. 56, 59).1 For the reasons stated herein the motions for summary

judgment will be denied.

I. BACKGROUND

Defendants Woodbury Veterinary Hospital (“Woodbury”) and Coffee Veterinary Hospital

(“Coffee”) are small general practice animal hospitals. (Pl. SOF ¶ 31). Woodbury is owned by

three partners – Dr. Hoover, Dr. Bruner, and Dr. Jordan. (Id. ¶ 29). Coffee is owned by Dr. Hoover

1 Defendants’ Statement of Undisputed Material Facts (Doc. No. 44-1), together with Plaintiff’s

response (Doc. No. 56), is cited at “Def. SOF ¶ __” and Plaintiff’s Statement Undisputed Material Facts

(Doc. No. 52), together with Defendants’ response (Doc. No. 56), is cited as “Pl. SOF ¶ __.”

and Dr. Bruner. (Id.). Woodbury and Coffee are located in different towns – Woodbury, Tennessee

and Manchester, Tennessee, respectively.

Plaintiff Caitlin Thompson worked for Woodbury as a veterinary technician from June

2020 to May 2021, and from December 2021 until she was terminated on December 3, 2022. (Id.

¶ 1). For three days in November 2022, Plaintiff worked at Coffee. (Pl. SOF ¶ 3, 23). This lawsuit

arises out of events that took place during Plaintiff’s brief employment at Coffee that led to the

end of her employment at both Coffee and Woodbury.

Plaintiff was working for Woodbury when Dr. Bruner asked her if she would “consider

helping out” at Coffee because it was understaffed. (Thompson Dep. at 48).2 At the time, Plaintiff

was only working Mondays at Woodbury. (Id. at 104). She voluntarily agreed to work at Coffee

with the expectation that she would work there until Coffee found a replacement technician. (Id.

at 48, 77). Plaintiff was the only employee to have worked at both Woodbury and Coffee. (Bruner

Dep. at 28; Jordan Dep. at 23). At Coffee she was paid $2 more per hour than at Woodbury and

allowed use of gas card to purchase approximately $55 of gasoline. (Def. SOF ¶¶ 23, 24, 46).

Plaintiff claims her round-trip commute time to Coffee was approximately 10-15 minutes longer

than her commute time to Woodbury.3 (Def. SOF ¶¶ 2-5; Pl. SOF ¶ 26). Neither Plaintiff nor

Defendants kept records of Plaintiff’s commuting time, and Plaintiff neither reported the time nor

requested to be paid for it. (Def. SOF ¶¶ 49, 61-65).

2 All deposition testimony is cited as “[Last Name] Dep. at [page number].” Deposition testimony is

filed in the record as follows: Caitlin Thompson, Doc. Nos. 44-3, 50-4; Diane Bruner, Doc. No. 50-5;

Michael Hoover, Doc. No. 50-6; Lewana Jordan, Doc. No. 50-3.

3 In her initial interrogatory responses, Plaintiff stated that her commute was approximate 40-45

minutes each way at both Woodbury and Coffee. (Def. SOF ¶¶ 47, 48). Plaintiff amended this response

after “she had more time to think about the actual time it took [] to commute.” (Thompson Dep. at 56).

Plaintiff’s amended response states that her commute was approximately 30-35 minutes each way to

Woodbury and about 30-35 minutes to Coffee in the morning and approximately 40-45 minutes from Coffee

in the afternoon. (See Pl. Am. Interrog. Resp., Doc. No. 44-5 at PageID# 648-49).

Plaintiff worked for Coffee on three days, the last of which was November 29, 2022.

Sometime that morning Dr. Hoover sent a text message to Dr. Bruner complaining that Plaintiff

was “more screwed up” than another employee and that Plaintiff had misread some test results.

(See Doc. No. 44-6). Dr Bruner responded, “Um well that’s not ok.” (Id.).

Later that morning, while Plaintiff was assisting Dr. Hoover with a blood draw for a dog

named Luna, the dog was squirming, and they were having difficulty getting the blood draw.

(Hoover Dep. at 30-31; Thompson Dep. at 43). Then, Dr. Hoover made contact with his hand to

Luna’s nose twice. (Pl. SOF ¶ 5). When describing the incident, Plaintiff testified that “Dr. Hoover

got upset and struck [the dog] violently on the muzzle twice loud enough that you could hear it

throughout the treatment room. And I know it caused her pain because she yelped as if she was in

pain and urinated and defecated on herself, none of which is behavior you would expect from a

dog who was not in pain.” (Thompson Dep. at 43-44). Plaintiff cleaned the dog up and returned it

to its owners. (Def. SOF ¶ 18).

Dr. Hoover does not dispute that he “made contact with his hand to Luna’s nose twice,”

but he contends Plaintiff’s characterization of the force of contact and Luna’s reaction is

inaccurate. (Def. Resp. to Pl. SOF ¶ 5; Hoover Dep. at 33-35, 41-42). Dr. Hoover described his

contact with the dog’s nose as a “tap” and testified that the dog did not defecate on herself. (Hoover

Dep. at 33-35, 41-42). He did not remember whether the dog urinated on herself, but stated that if

the dog had done so he would have written it in the record and suggested that the dog have mild

sedation for future procedures. (Id.). He did not make any such entry in the record here. (Id.).

Plaintiff believed the conduct constituted animal abuse. (Thompson Dep. at 44

(“Regardless if there was a mark or not, he did strike her enough that [] she showed she was in

pain and that is clearly abuse.”)). She discussed her concerns about the alleged animal abuse with

Dr. Hoover after lunch that day. (Pl. SOF ¶ 13; Hoover Dep. at 70; Thompson Dep. at 76-77). Dr.

Hoover responded by giving her two choices: “if she agreed [that there was no animal abuse], she

could stay and work out the rest of her shift” or “if she didn’t agree with that, she was free to go

home.” (Hoover Dep. at 70). Plaintiff left. (Pl. SOF ¶ 14). On her way home from the clinic, she

spoke with Dr. Bruner and told her about what had happened. (Thompson Dep. at 130-31). By that

time, Dr. Hoover had already notified Dr. Bruner of the incident by text. (Doc. No. 44-6). He

wrote:

caitlyn needs to go away … soon.

…

i had a dog this morning for heartworm test … she was holding it and dog

was squirming and she kept letting go … i took dog and held it … she

couldn’t fucking get blood so i gave her back and i rapped her on the nose to

get her attention … didn’t strike her didn’t do anything but tap her nose to

get her attention … and she has a problem with it … i have a fucking problem

with her saying a damn thing to me … if she could hold the damn dog we

wouldn’t have been there

i’m done with her … tell her to go stick her fucking nose up Shirley’s ass and

get a fucking can of squeeze cheese …

(Id.).

On Saturday, December 3, 2022, during a phone call, Dr. Bruner fired Plaintiff from her

job at Woodbury explaining, “If you can’t work for one of us, you can’t work for any of us.” (Pl.

SOF ¶ 16).

On December 5, 2022, Plaintiff collected two paychecks – one from Woodbury and one

from Coffee – at the Woodbury clinic. (Pl. SOF ¶ 35). She also received a termination letter from

Woodbury signed by Dr. Bruner and Dr. Jordan. (Pl. SOF ¶ 17; Doc. No. 50-1). The termination

letter stated:

Termination of Caitlin Thompson from Woodbury Veterinary Hospital was

executed after an issue occurred at Coffee Veterinary Hospital, where as Mrs.

Thompson stated she had some ethical issues with one of the owners there

and walked out during her shift on November 29, 2022, the owner is also a

partner here at Woodbury Veterinary Hospital. Due to that fact and after a

conversation with Mrs. Thompson on December 3, 2022 she was terminated.

(Doc. No. 50-1). The parties agree the “ethical issues” referred to in the termination letter are

Plaintiff’s “claim that Dr. Hoover committed animal abuse toward Luna.” (Pl. SOF ¶ 18). Dr.

Bruner testified that Plaintiff was terminated “because she’s accusing another employee of abuse

and without any corroboration or anything, making it difficult to work with her after that when

she’s walking out on her job and accusing other employees of abuse and misconduct.” (Def. Resp.

to Pl. SOF ¶ 20; Bruner Dep. at 61-62). Dr. Bruner also testified that one of the reasons Plaintiff

was fired from Woodbury was “not being able to perform the duties she was trained for” –

“[h]olding and animal [and] drawing blood,” which she stated was referring to the incident with

Luna. (Bruner Dep. at 52).

After her employment ended, Plaintiff reported the incident and other concerns regarding

Dr. Hoover to the Tennessee Board of Veterinary Medical Examiners. (Pl. SOF ¶ 21; Doc. No.

50-7). This lawsuit followed. (See Complaint, Doc. No. 1). Plaintiff brings claims for violation of

the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and for retaliatory discharge

under the Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-1-304. (Id.). An

additional claim under 26 U.S.C. § 7434 related to tax forms was dismissed pursuant to a joint

stipulation. (See Doc. No. 31, 32).

Now before the Court are the parties’ cross motions for summary judgment. (Doc. Nos. 44,

50).

II. STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The party bringing the summary judgment motion has the initial burden of informing the

Court of the basis for its motion and identifying portions of the record that demonstrate the absence

of a genuine dispute over material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The

moving party may satisfy this burden by presenting affirmative evidence that negates an element

of the non-moving party’s claim or by demonstrating an absence of evidence to support the

nonmoving party’s claims. Id.

In evaluating a motion for summary judgment, the Court views the facts in the light most

favorable for the nonmoving party and draws all reasonable inferences in favor of the nonmoving

party. Bible Believers v. Wayne Cty., Mich., 805 F.3d 228, 242 (6th Cir. 2015); Wexler v. White’s

Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003). The Court does not weigh the evidence,

judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986). Rather, the Court determines whether sufficient evidence has been

presented to make the issue of material fact a proper jury question. Id. The mere scintilla of

evidence in support of the nonmoving party’s position is insufficient to survive summary

judgment; instead, there must be evidence from which the jury could reasonably find for the

nonmoving party. Rodgers, 344 F.3d at 595.

III. ANALYSIS

A. Fair Labor Standards Act

Plaintiff claims Defendants violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §

201 et seq., by misclassifying her as an independent contractor, failing to maintain proper payroll

records, and failing to compensate her for time traveling to and from Coffee that was in excess of

her usual travel time to and from Woodbury. (See Doc. No. 51 at 20-22).

Of the three FLSA violations alleged, only the claim for unpaid wages is actionable under

this section. “Although it is unlawful for an employer to fail to comply with [the FLSA’s]

recordkeeping requirements, the FLSA does not create a private cause of action for an employee

against an employer for violation of recordkeeping provisions.” Stansbury v. Faulkner, 443 F.

Supp. 3d 918, 932 (W.D. Tenn. 2020) (citing Elwell v. Univ. Hospitals Home Care Svcs., 276 F.3d

832, 843 (6th Cir. 2002)). Similarly, although willfulness or negligence in misclassification is

relevant to damages calculations, misclassification is not itself independently actionable. Id. at 933

(misclassification relevant to issue of liquidated damages). Accordingly, notwithstanding

Defendants’ alleged violation of various FLSA provisions, Plaintiff’s actionable claim is that

Defendants failed to compensate Plaintiff for all time worked at Coffee, specifically that

Defendants failed to compensate her for travel time.

The FLSA provides for a private right of action against an employer by an employee when

an employee has not been paid for compensable time. See 29 U.S.C. § 216(b). Generally,

employers are liable under the FLSA only if they knew or could have known through the exercise

of reasonable diligence that their employees performed work without compensation. Craig v.

Bridges Bros. Trucking, LLC, 823 F.3d 382, 388-89 (6th Cir. 2016); see also, 29 C.F.R. § 785.12.

To establish a claim for unpaid compensation, Plaintiff must “prove by a preponderance of

evidence that he or she performed work for which he [or she] was not properly compensated.”

O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 602 (6th Cir. 2009). When an employer keeps

inaccurate or inadequate records, a plaintiff can estimate her damages and the burden shifts to the

employer to negate the estimate. Id. at 602-03.

Generally, travel to and from home is not compensable work time. See 29 U.S.C. § 254

(employer is not subject to FLSA liability due to failure to pay an employee for “traveling to and

from the actual place of performance of the principal activity or activities which such employee is

employed to perform”); 29 C.F.R. §§ 785.35 (“An employee who travels from home before his

regular workday and returns to his home at the end of the workday is engaged in ordinary home to

work travel which is a normal incident of employment. This is true whether he works at a fixed

location or at different job sites. Normal travel from home to work is not worktime.”).

There are a few exceptions to this rule, including when an employee who regularly works

at a fixed location is given an assignment in another city at the employer’s “special request” and

for its “benefit” to meet the needs of a “particular and unusual assignment.” See 29 C.F.R. § 785.37

(“Home to work on a special one-day assignment in another city”). Under such circumstances,

travel time to the secondary location is compensable “work,” but only to the extent that it exceeds

the time usually spent commuting to the regular work site. Id.

The parties agree Plaintiff is entitled to compensation for her travel time only if she was on

“assignment” to Coffee at Woodbury’s “special request” and her commute time to Coffee

exceeded her commute time to Woodbury. At issue are: (1) whether Plaintiff was on “assignment”

to Coffee from her regular workplace at Woodbury or was separately employed by Coffee; and (2)

whether Plaintiff’s travel time to Coffee was more than her travel time to Woodbury and, if so, by

how much.4

1. On Assignment or Separately Employed

Defendants argue that Coffee was a separate entity and separate employer that had no duty

to compensate Plaintiff for travel time between her home and work because it was ordinary “Home

to Work Travel Time.” (Doc. No. 61 at 2 (citing 29 C.F.R. § 785.35)). In support of this argument,

Defendants state that Plaintiff volunteered to take the job at Coffee and that Dr. Bruner testified

that the offer to work at Coffee was “a separate job offer.” (Def. SOF ¶ 25; Bruner Dep. at 56).

Defendants argue that, although Coffee and Woodbury have owners in common, they are separate

entities as evidenced by the fact that they have separate locations, names, and rates of pay; filed

separate tax returns; and issued paychecks separately. (Pl. SOF ¶ 29; Def. SOF ¶¶ 23, 24; Compl.

¶¶ 6, 7; Jordan Dep. at 3; Doc. No. 50-9)).

Plaintiff contends she was on assignment from Woodbury because Dr. Bruner asked her to

take a temporary assignment to Coffee to help relieve a staff shortage there. (Doc. No. 58 at 6

(citing Pl. SOF ¶ 25; Def. SOF ¶ 26; Answer, Doc. No. 20 ¶ 15; Thompson Dep. at 48; Bruner

Dep. at 28, 56). Plaintiff argues that Woodbury and Coffee were joint employers or a joint

enterprise for purposes of the FLSA, pointing to evidence that Woodbury and Coffee share

common ownership and control (together Dr. Bruner and Dr. Hoover own 100% of Coffee and

66% of Woodbury), common purpose (both small general practice animal hospitals), and common

4 Defendants offer evidence to show that Plaintiff did not report her commuting time as hours worked

or otherwise seek to obtain compensation for this time outside of this lawsuit. (See Def. SOF ¶¶ 60-67). But

Defendants do not specifically argue that they did not know or have reason to know Plaintiff was

commuting to Coffee or that her commute to Coffee was longer than her usual commute to Woodbury. (See

Doc. No. 44-2 at 16-20). Indeed, the fact that Defendants provided Plaintiff a gas card in connection with

her agreement to work at Coffee could be viewed as suggesting they knew she had additional driving time.

(See Pl. Dep. at 61; Def. SOF ¶ 46).

control of Plaintiff’s employment. (Doc. No. 58 at 10 (citing Pl. SOF ¶¶ 29-35; Def. SOF ¶¶ 37,

75-77). Plaintiff also notes that she retrieved her final paychecks from Woodbury and Coffee from

the Woodbury location and both checks were signed by Dr. Bruner. (Pl. SOF ¶ 35; Doc. No. 50-9

(paychecks)).

The FLSA gives distinct meanings to the terms “employer” and “enterprise.” See 29 C.F.R.

§ 779.203. As used in the FLSA, “enterprise” is “roughly descriptive of a business.” Id. “Enterprise

means the related activities performed (either through unified operation or common control) by

any person or persons for a common business purpose.” 29 U.S.C. § 203(r)(1).

Whether a party is an employer within the meaning of the FLSA is a legal determination

for which “economic reality” controls rather than common law concepts of agency. Dole v. Elliot

Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir. 1991). “The FLSA contemplates there being

several simultaneous employers who may be responsible for compliance with the FLSA.” Id.

Under the economic reality test, the Court considers the “circumstances of the whole business

activity,” including “(1) whether the plaintiff is an integral part of the operations of the putative

employer; (2) the extent of the plaintiff’s economic dependence on the defendant[ ]; (3) the

defendant’s substantial control of the terms and conditions of the work of the plaintiff; (4) the

defendant’s authority to hire or fire the plaintiff; and (5) whether the defendant maintains the

plaintiff’s employment records and establishes the rate and method of payment.” Ellington v. City

of E. Cleveland, 689 F.3d 549, 555 (6th Cir. 2012) (internal citations omitted).

Neither party has shown an absence of dispute of material fact or that they are entitled to

judgment as a matter of law on this issue. As an initial matter, Plaintiff has not pointed to any

authority, and the Court has found none, using joint employer or enterprise status to determine

whether an employee is “on assignment” to a different entity. When viewed in the light most

favorable to the non-moving party, the evidence presented is insufficient to establish as a matter

of law that Plaintiff was or was not on temporary assignment to Coffee for the benefit of

Woodbury. The matter is, of course, complicated by the fact that Dr. Bruner and Dr. Hoover are

ostensibly Plaintiff’s employers at both Woodbury and Coffee. But there is also evidence of

Woodbury and Coffee’s separateness – separate payroll, locations, names, etc. And the mere fact

that the Coffee job was intended to be temporary does not require the conclusion that Plaintiff was

on “assignment” from Woodbury; nor does the description “temporary assignment” necessarily

mean that she was on “assignment” from Woodbury.

2. Travel Time

Next, both parties contend there are no material disputes of fact concerning the difference

in Plaintiff’s commute. Defendants argue that even if Plaintiff was on a special assignment to

Coffee or was required to travel there as an integral part of her job for Woodbury, she cannot meet

her burden to show that she accrued compensable travel time because Plaintiff’s testimony and

interrogatory responses concerning her commute time are conflicting and insufficient to establish

a violation of the FLSA for uncompensated travel time. (Doc. No. 44-2 at 16-20; Doc. No. 61 at

2-3). Plaintiff, on the other hand, argues that the evidence clearly shows that she is entitled to

compensation for travel time based on her estimate that she spent an additional 10-15 minutes per

day commuting to and from Coffee. Plaintiff argues that she does not need to prove every minute

worked because Defendants failed to keep accurate records of her commute time and that her

testimony is sufficient to approximate damages. (Doc. No. 51 at 21-22).

Neither party has shown an absence of material fact as to this issue. Taken in the light most

favorable to Defendants, Plaintiff’s commute was approximately the same, in which case she is

not entitled to compensation for travel time. (See Pl. Resp. Interrogatories #10-11, Doc. No. 44-5

at PageID# 607-08)). However, Plaintiff later claimed that her travel time to Coffee was between

10 and 25 minutes more than her commute time to Woodbury. (See Pl. Am. Resp. Interrogatories

# 10-11 at PageID# 648-49; Thompson Dep. at 63-65). A jury could credit this testimony and find

she is entitled to compensation for travel (assuming they also conclude Plaintiff was on assignment

from Woodbury). Accordingly, summary judgement will not be granted to either party on the

FLSA claim.

B. Tennessee Public Protection Act

The Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-1-304(b), creates

a cause of action for employees “discharged or terminated solely for refusing to participate in, or

for refusing to remain silent about, illegal activities.” The TPPA “includes both (1) discharge in

retaliation for refusing to remain silent about illegal activities, usually referred to as

‘whistleblowing,’ and (2) discharge in retaliation for refusing to participate in illegal activities.

The claims are similar but distinct.” Williams v. City of Burns, 465 S.W.3d 96, 110 (Tenn. 2015)

(emphasis in original) (citation omitted).

Where the claim is based on a refusal to remain silent about illegal activity, the plaintiff

must establish that he or she reported the illegal activity and that the ‘reporting of the illegal

activity furthered a clear public policy.’” Haynes v. Formac Stables, Inc., 463 S.W.3d 34, 37

(Tenn. 2015). While the employee need not always report the suspected illegal activities directly

to law or regulatory enforcement officials, they must make a report to someone other than the

person or persons who are engaging in the allegedly illegal activities. Haynes, Inc., 463 S.W.3d at

40. In most cases, internal reporting will suffice. But when the wrongdoer is also the manager,

owner, or highest authority within the company, the employee must report the alleged illegal

activity to an outside entity. Lawson v. Adams, 338 S.W.3d 486, 493 (Tenn. Ct. App. 2010)

(citation omitted). When the claim is based on a refusal to participate in illegal activities, reporting

is not required. Haynes, 463 S.W.3d at 37, n.3.

The TPPA defines “illegal activities” as “activities that are in violation of the criminal or

civil code of [Tennessee] or the United States or any regulation intended to protect the public

health, safety, or welfare.” Tenn. Code Ann. § 50-1-304(a)(3). The Plaintiff need not prove an

actual violation of law. “The [TPPA’s] protection extends to employees who have reasonable

cause to believe a law, regulation, or rule has been violated or will be violated, and in good faith

report it.” Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997).

The TPPA sets a high bar for recovery for retaliatory discharge – the plaintiff must prove

that retaliation for the protected conduct was the only reason for her termination. See Tenn Code

Ann. § 50-1-304(b) (“No employee shall be discharged or terminated solely for refusing to

participate in, or for refusing to remain silent about, illegal activities”) (emphasis added); Williams

v. City of Burns, 465 S.W.3d at 110-11 (Tenn. 2015).

The TPPA establishes a burden shifting framework similar to that used in federal

employment cases. Id. § 50-1-304(f). Pursuant to this framework:

[T]he plaintiff shall have the initial burden to establish a prima facie case of

retaliatory discharge. If the plaintiff satisfies this burden, the burden shall

then be on the defendant to produce evidence that one (1) or more legitimate,

nondiscriminatory reasons existed for the plaintiff’s discharge. The burden

on the defendant is one of production and not persuasion. If the defendant

produces such evidence, the presumption of discrimination raised by the

plaintiff’s prima facie case is rebutted, and the burden shifts to the plaintiff

to demonstrate that the reason given by the defendant was not the true reason

for the plaintiff’s discharge and that the stated reason was a pretext for

unlawful retaliation. The foregoing allocations of burdens of proof shall

apply at all stages of the proceedings, including motions for summary

judgment. The plaintiff at all times retains the burden of persuading the trier

of fact that the plaintiff has been the victim of unlawful retaliation.

Id. § 50-1-304(f).

Both parties move for summary judgment on this claim. Before proceeding to the

substantive merits of Plaintiff’s TPPA claim, the Court will briefly address several arguments

raised by Defendants that are not directly tied to the merits. Defendants argue Plaintiff is not

entitled to a jury trial on the TPPA claim, that the claim should be barred in its entirety under the

doctrine of unclean hands (because Plaintiff literally cleaned the dog), and that Plaintiff’s motion

for summary judgment on the TPPA claim should be denied because of a host of procedural

deficiencies, factual disputes, and unsupported facts.

Defendants contend Plaintiff is not entitled to a jury trial on the TPPA claim under the

Tenneesee Supreme Court’s decision in Young v. City of LaFollette, 479 S.W.3d 785, 795 (Tenn.

2015). (See Doc. No. 44-2 at 13). But Young states only that a jury trial is precluded for claims

brought in Tennessee circuit courts. See 479 S.W.3d at 794-95 (“By enacting the TPPA, but

choosing not to provide explicitly for the right to trial by jury within the TPPA, the Legislature

exercised its authority to effectively preclude the right to a jury trial, at least with respect to TPPA

claims brought in circuit court.”). The Court need not state the obvious distinction that this case

was not brought in Tennessee circuit court. In any event, the Court agrees with Plaintiff that

summary judgment is not the vehicle to decide whether the TPPA claim will be decided by the

Court or a jury. Even if the Court were inclined to do so, the briefing on this issue, which consists

of two paragraphs and only one published decision, is insufficient for the Court to resolve the issue

at this juncture. (See Doc. No. 44-2 at 13, n.1; Doc. No. 58 at 11, n. 3; Doc. No. 61 at 4-5).

With regard to Defendants’ arguments concerning alleged procedural and factual errors

and deficiencies, as discussed below, disputes of material fact preclude summary judgment to any

party on the TPPA claim. Accordingly, except as otherwise discussed herein, the Court does not

address the arguments. Finally, the defense of unclean hands, even if not raised in jest, has no

application to Plaintiff’s statutory TPPA claim.5 See In re Mattie L., 618 S.W.3d 335, 344-45

(Tenn. 2021) (holding a trial court erred in applying the doctrine of unclean hands as a defense to

a claim for statutory relief because the doctrine “applies only to parties who seek an equitable

remedy from a court”).

Turning to the merits of Plaintiff’s TPPA claim, Plaintiff contends summary judgment

should be granted in her favor because there are no disputes of material fact as to any element of

the prima facie claim and Defendants cannot proffer a legitimate non-retaliatory reason for her

termination. (Doc. Nos. 50, 51).

Defendants contend they should be granted summary judgment on the TPPA claim because

Plaintiff cannot establish required elements of her claim – specifically that: (1) Plaintiff cannot

establish that she had a reasonable belief that Dr. Hoover’s conduct constituted illegal activity and

therefore fails to establish the second element of a prima facie claim; and (2) she cannot establish

a claim against Coffee because she did not report the alleged illegal activity to anyone other than

Dr. Hoover before she quit. Finally, Defendants proffer non-retaliatory reasons for termination.

1. Prima Facie Case

To establish a prima facie case of retaliatory discharge under the TPPA, the Plaintiff must

show: (1) that she was an employee of the defendant; (2) that she refused to participate in or remain

silent about “illegal activities” as defined by the statute; (3) she was terminated; and (4) an

exclusive causal relationship existed between her refusal to participate in or remain silent about

5 Defendants contend Plaintiff’s TPPA claim is barred because she has unclean hands (literally and

legally). They argue that by cleaning the dog Plaintiff “actively participat[ed] in (even orchestrat[ed]) a

coverup” of the alleged animal abuse and would therefore “have no TPPA claim because she would have

participated in the alleged wrongdoing, and such raises a defense of unclean hands.” (Doc. No. 55 at 13-

14).

illegal activities and her termination. Williams, 465 S.W.3d at 113. The burden to establish a prima

facie case is not onerous. Id.

There appears to be no dispute that Plaintiff has established that she was an employee of

Woodbury and of Coffee and was terminated – elements one and three. The parties primarily

discuss element four – an exclusive causal relationship – in the context of whether Defendants

proffer a legitimate non-retaliatory reason for termination and Plaintiff’s ability to show pretext.

Given the temporal proximity between Plaintiff’s complaints and her termination, and the

relatively light burden at the prima facie stage, the Court also considers the causation element of a

prima facie case to be satisfied. Defendants challenge Plaintiff’s ability to show a reasonable belief

that Dr. Hoover engaged in illegal activity and that she reported illegal activity to anyone other

than the wrongdoer before her employment at Coffee ended. Both issues are part of element two.

a) Reasonable Belief in Illegal Activities

Plaintiff is not required to prove that the actions she complained of or refused to participate

in were actually illegal, only that she has cause to believe that illegal conduct had occurred. King

v. Delfasco, 646 S.W.3d 456, 468 (Tenn. Ct. App. 2021) (citation omitted). To show a reasonable

belief of illegal activity, Plaintiff must “‘identify the law and policy that [she] contends was

contravened and must be able to substantiate these allegations to some degree.” Id. at 469 (citing

Richmond v. Vanguard Healthcare Servs., LLC, No. M2014–02461–COA–R3–CV, 2016 WL

373279, at *7 (Tenn. Ct. App. Jan. 29, 2016)).

Plaintiff points to Tennessee’s statute prohibiting cruelty to animals – Tenn. Code Ann. §§

39-14-201 and 202 – and the ethical rules governing veterinarians set forth in Tenn. Code Ann. §§

62-12-101, et seq., and Tenn. Rules and Regs. 1730-01. The Court focuses on the Tennessee statute

prohibiting cruelty to animals. Under this statute, a person commits cruelty to animals if he

intentionally or knowingly “tortures [or] maims” an animal.6 Tenn. Code Ann. § 39-14-202(a)(1).

“Torture” is defined as “every act, omission, or neglect whereby unreasonable physical pain,

suffering, or death is caused or permitted.”7 Tenn. Code Ann. § 39-14-201(4). Reading these

provisions together, a person who engages in an act that causes unreasonable physical pain to an

animal commits the offense of animal cruelty. Under the statute, the first offense of animal cruelty

is a Class A misdemeanor; a second or subsequent offense is a Class E felony. Tenn. Code Ann. §

39-14-202(g).

Defendants argue Plaintiff’s belief that Dr. Hoover’s conduct toward the dog constituted

illegal activity was not reasonable. because she “testified that she did not consider Dr. Hoover to

have ‘tortured’ Luna” and that there was no maiming because Plaintiff “never even saw so much

as a mark on Luna.” (Doc. No. 44-2 at 23). Defendants conclude that without “torture” or

“maiming,” it was unreasonable for Plaintiff to believe Dr. Hoover’s conduct toward the dog was

animal abuse.8 (Id. at 23-24).

Defendants’ reliance on Plaintiff’s testimony of her perception of whether Dr. Hoover’s

conduct constituted “torture” is misplaced. Construing the testimony in the light most favorable to

Plaintiff, her testimony that she did not view Dr. Hoover’s conduct as “torture” because it was not

“prolonged” was based on the common meaning of the word, not the statutory definition. This

6 The statute contains a number of other provisions concerning treatment of animals, none of which

are relevant here.

7 Notably, the statutory definition of “torture” encompasses less severe conduct than that

encompassed under the ordinary meaning of the word, which is “the infliction of intense pain (as from

burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure” or “something that causes

pain or agony.” Merriam-Webster.com, https://www.merriam-webster.com/dictionary/torture (last visited

Feb. 21, 2025).

8 Defendants also compare Dr. Hoover’s conduct to that of “spanking a human child,” and argue that

because spanking a child “is not illegal nor could reasonably be perceived as such” Plaintiff’s belief that

Dr. Hoover’s actions were illegal was not reasonable.

purported admission by no means establishes the unreasonableness of her belief that Dr. Hoover’s

conduct was illegal.

Of course, whether Plaintiff’s belief that Dr. Hoover’s conduct violated laws prohibiting

animal abuse was a reasonable belief turns largely on the conduct at issue and on that there are

significant disputes of fact. It is undisputed that while assisting Dr. Hoover with treating a dog at

Coffee, Plaintiff observed Dr. Hoover “make contact with his hand to Luna’s nose twice.” (Pl.

SOF ¶ 5). The parties disagree on the force of the contact and whether it caused pain.

Plaintiff testified that “Dr. Hoover got upset and struck [Luna] violently on the muzzle

twice loud enough that you could hear it throughout the treatment room. And I know it caused her

pain because she yelped as if she was in pain and she urinated and defecated on herself, none of

which is behavior you would expect from a dog who is not in pain.”9 (Thompson Dep. at 43).

Dr. Hoover, on the other hand, testified that he “tapped [Luna] two times on the nose.”

(Hoover Dep. at 36; see also id. at 48). When asked to describe the strength of the tap, he said,

“it’s not hard” and “it’s a touch.” (Id. at 35, 36). According to Dr. Hoover, Luna reacted by

9 Defendants argue that Plaintiff’s testimony about the reason the dog yelp is impermissible

speculation. (Doc. No. 55 at 6-7). Defendants further argue that “even assuming the dog’s purported yelping

was an expression of pain, such statement by the dog would be inadmissible hearsay. Plaintiff could not

testify that a person ‘told me he was in pain.’ Likewise, Plaintiff cannot testify that the dog told her it was

in pain.” (Id. at 7). This the first occasion for the Court to consider a hearsay objection concerning a sound

made an animal. If, indeed, Luna’s yelp was a “statement” within the meaning of the Federal Rules of

Evidence, the Court posits that it might fall within one of the exceptions to the Rule against hearsay –

excited utterance, a then-exiting mental, emotional, or physical condition. See Fed. R. Evid. 803(2), (3). Or

perhaps, given the medical environment, Luna’s “statement” was made for medical diagnosis or treatment.

See Fed. R. Evid. 803(4). The Court need not spend time exploring these delightful avenues because the

Rule against hearsay provides that “statements” are made by a “person.” Fed. R. Evid. 801(a), (b).

Defendants’ argument that the Court should disregard Plaintiff’s testimony that she viewed Luna’s

yelp as an expression of pain because there is “no showing as to the reason the dog ‘yelped’” is somewhat

perplexing. Particularly given that Plaintiff clearly contends the dog yelped because Dr. Hoover struck her

“violently on the muzzle twice.” (See Pl. Dep. at 43). Plaintiff’s testimony merely explains why she believed

the dog was in pain. (See id. (“I know it caused her pain because she yelped as if she was in pain”)). Is it

“pure speculation” for Plaintiff to describe the yelp as one reflecting pain? Given her experience as a

veterinary technician, and the circumstances of the incident, the answer is “no.”

“look[ing] at [his] finger.” (Id. at 39). He did not believe Luna urinated on herself and was sure

she did not defecate on herself. (Id. at 42). Plaintiff argues that Dr. Hoover’s text messages to Dr.

Bruner, which describe the contact with Luna’s nose as a “rap” rather than a “tap,” cast doubt on

the description provided during his deposition. (See Doc. No. 51 at 5). Dr. Hoover says “rap” was

a typo. (Hoover Dep. at 32-33).

Needless to say, this underscores the factual dispute concerning the nature of the contact

between Dr. Hoover’s hand and Luna’s muzzle. At the summary judgment stage the Court does

not make credibility determinations or decide questions of fact. Construed in the light most

favorable to Plaintiff, a jury could conclude that Dr. Hoover violently struck Luna twice, causing

her to yelp as if in pain and to urinate and defecate on herself, and thus find Plaintiff’s belief that

Dr. Hoover committed animal abuse – i.e., inflicting unreasonable physical pain on an animal –

was reasonable. But when the testimony is construed in the light most favorable to Defendants, a

jury could conclude that Dr. Hoover merely tapped Luna on the nose eliciting no reaction other

than her looking at his finger. If that is what happened, her belief that such conduct was animal

abuse was almost certainly unreasonable.

Because there are disputes of material fact on this element of Plaintiff’s prima facie case,

summary judgment cannot be granted in favor of either party based solely on this element.

b) Reporting

Defendants next argue they are entitled to summary judgment on the TPPA claim because

Plaintiff did not report the conduct to anyone other than Dr. Hoover “prior to quitting and leaving

her shift.” (Doc. No. 44-2 at 21). She only reported Dr. Hoover’s conduct to Dr. Bruner after she

left Coffee. Therefore, Defendants argue there can be no retaliatory discharge from Coffee because

Plaintiff did not report her concerns to anyone other than the alleged wrongdoer until after her

employment at Coffee ended. (Id. at 22). Defendants further argue that if Woodbury and Coffee

are “unified essentially as a single employer” then Plaintiff necessarily quit Woodbury when she

quit Coffee and her reporting to Dr. Bruner was too late to state a claim for retaliation.

Plaintiff disputes that she quit Coffee the moment she left the building. (See Doc. No. 58

at 12). In fact, she claims she does not know exactly when her employment with Coffee ended

except that she was “forced to leave” sometime after lunch on November 29, 2022. (Pl. Resp. Def.

SOF ¶¶ 30, 31 (citing Pl. Dep. at 50)). Plaintiff argues that even if she ended her employment with

Coffee before she spoke to Dr. Bruner, her claim is based on both her opposition to Dr. Hoover’s

alleged animal abuse by reporting it and her refusal to participate in further abuse. (Doc. No. 58 at

13). Plaintiff contends there is no dispute that she was terminated from Woodbury after she spoke

to Dr. Bruner, therefore her reporting to Dr. Bruner satisfies the reporting requirement with regard

to her claim against Woodbury. (See Pl. SOF ¶¶ 12, 15).

Her claim against Coffee, on the other hand, is based on refusal to participate in further

abuse, which does not require reporting. See Haynes, 463 S.W.3d at 37, n.3. Defendants do not

address this aspect of her claim.10 Therefore, summary judgment cannot be granted in favor of

Defendants based on Plaintiff’s alleged failure to establish she reported the illegal conduct before

she was terminated.

As explained above, there are disputes of material fact, including Dr. Bruner’s actions

toward the dog and whether Plaintiff reasonably believed Dr. Bruner committed animal abuse. For

10 Defendants acknowledge that Plaintiff’s claim is based on refusal to participate, but their arguments

in opposition to this claim are limited to the argument that “Plaintiff’s belief of animal abuse was an

unreasonable belief that the non-existent crime of ‘animal abuse’ of ‘animal abuse’ had occurred.” (See

Doc. No. 55 at 5, 16; See also Def. SOF ¶ 11 (“You state the only reason You were fired was because You

refused to participate in alleged animal abuse and because You reported Your allegations of animal abuse

to Dr. Hoover and to Dr. Bruner.”)).

purposes of Plaintiff’s motion these facts are viewed in the light most favorable to the Defendants.

A reasonable jury (or finder of fact) could find that Dr. Hoover gently tapped Luna on the nose

and that Plaintiff unreasonably believed that he engaged in animal abuse. Because Plaintiff has not

shown the absence of disputes of fact and that no reasonable jury (or finder of fact) could find for

the Defendant, Plaintiff’s motion for summary judgment must be denied and the Court’s

consideration of Plaintiff’s motion ends here.

For purposes of Defendants’ motion, however, the Court views the facts in the light most

favorable to Plaintiff. Viewed in this light, Plaintiff has established a prima facie case under the

TPPA. Accordingly, the Court proceeds to the next step in the burden shifting framework with

regard to Defendants’ motion for summary judgment.

2. Legitimate Non-Retaliatory Reason for Termination and Pretext

Under the TPPA, once Plaintiff has established a prima facie claim, the burden shifts to the

defendant to “produce evidence that one (1) or more legitimate, nondiscriminatory reasons existed

for the plaintiff’s discharge.” Tenn. Code Ann. § 50-1-304(f). “The burden on the defendant is one

of production and not persuasion.” Id.

Defendants state that Plaintiff was fired for poor performance, and because she stated that

she had some “ethical issues” with one of the owners at Coffee who is also a partner at Woodbury

and “walked out during her shift on November 29, 2022.” Defendants point to a text message from

Dr. Bruner to Dr. Hoover, before the incident with Luna, in which Dr. Bruner expressed his

displeasure with Plaintiff’s work performance. (See Doc. No. 44-2 (citing Doc. No. 44-6)).

Plaintiff argues the proffered reasons fail to satisfy Defendants’ burden to show that

legitimate non-retaliatory reasons existed for her discharge. First, Plaintiff argues that because she

claims to have been constructively discharged from Coffee after she refused to recant her allegation

of animal abuse, Defendants effectively cannot proffer a legitimate non-retaliatory reason for her

discharge from Coffee. Second, Plaintiff argues that the fact that she left her shift early cannot

serve as legitimate grounds for dismissal because even if they had fired her because she left early,

because she did so in refusal to participate in illegal conduct, such termination would “amount to

direct evidence of retaliatory motive.” (Doc. No. 58 at 18 (citing Williams v. City of Burns, 465

S.W.3d 96 (Tenn. 2015)).

Finally, Plaintiff argues even if Dr. Bruner did raise some issues about her performance,

Defendants have never asserted (until summary judgment) that they actually fired her for alleged

performance issues and that Dr. Bruner’s affidavit (Doc. No. 57-1), filed with Defendant’s

response to Plaintiff’s motion for summary judgment, should not be considered.

In the affidavit, Dr. Bruner states that “Plaintiff’s lack of attention to her job and lack of

skills necessary to perform her job, as evidenced by these said text messages occurring prior to

Plaintiff’s alleged incident forming the basis of her claim, were one of the reasons she was

terminated, and such reasons could not possibly be considered pretext for retaliatory discharge as

said text messages occurred prior to the alleged incident in question.” (Id.). Plaintiff argues the

Court should disregard Dr. Bruner’s affidavit for a number of reasons, including that it directly

contradicts the Termination Letter, sworn interrogatory responses, and deposition testimony. (See

Pl. Reply, Doc. No. 60 at 2-3). Plaintiff argues that until this affidavit, Defendants never argued

that Plaintiff was fired for poor performance, only that she could have been. (Id. at 3 (citing Doc.

No. 57 at 2) (stating that “reasons already existed for Plaintiff’s termination prior to the alleged

incident”)).

At best, Dr. Bruner’s affidavit clarifies prior testimony; at worst, it directly contradict it.

For purposes of this motion, the Court need not decide whether the affidavit should be stricken

under the sham affidavit doctrine. See France v. Lucas, 836 F.3d 612, 622 (6th Cir. 2016)

(explaining that under the sham affidavit doctrine, after a motion for summary judgment has been

made, a party may not file an affidavit that contradicts his earlier sworn testimony or is an attempt

to create a sham fact issue; any such affidavit should be stricken). This is because even if

Defendants proffered reasons satisfy Defendants’ burden to establish that “legitimate,

nondiscriminatory reasons existed for the plaintiff’s discharge,” Plaintiff easily meets her burden

to show the proffered reasons were pretextual. First, close temporal proximity suggests that

Plaintiff was constructively discharged from Coffee and fired from Woodbury because she claimed

Dr. Hoover engaged in animal abuse. Dr. Hoover immediately told her that if she agreed there was

no animal abuse “she could stay and work out the rest of her shift [and] [i]f she didn’t agree with

that, she was free to go home.” (Hoover Dep. at 70). He then texted Dr. Bruner about the incident,

“[I]’m done with her.” (See Doc. No. 44-6). A few days later Plaintiff was also fired from

Woodbury. (Pl. SOF ¶ 15).

In light of the foregoing, Defendants’ argument that Plaintiff was also fired for poor

performance rings hollow. In fact, the first mention of Plaintiff being fired for poor performance

appears to come in the form of Dr. Bruner’s affidavit attached as an exhibit to Defendants’

response to Plaintiff’s motion for summary judgment. (Doc. No. 57-1). Even if the Court

considered Dr. Bruner’s affidavit in support of Defendants’ motion for summary judgment (to

which it was not an exhibit), Plaintiff has carried her burden to show that the reason given by

Defendants was not the true reason for Plaintiff’s discharge and that the stated reason was a pretext

for unlawful retaliation. Given the chronology of events, including the chronology of the proffered

reasons for her termination, a factfinder could conclude that poor performance was not actually a

reason for Plaintiff’s termination.

IV. CONCLUSION

For the reasons stated, the parties’ respective motions for summary judgment (Doc. Nos.

44, 50) will be DENIED. An appropriate Order will enter.

WILLIAM L. CM;

CHIEF UNITED STATES DISTRICT JUDGE

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