David G. Young, Individually and as City Administrator for the City of Lafollette v. City of Lafollette

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 4, 2013 Session

DAVID G. YOUNG, INDIVIDUALLY AND AS CITY ADMINISTRATOR FOR THE

CITY OF LAFOLLETTE v. CITY OF LAFOLLETTE ET AL.

Interlocutory Appeal from the Circuit Court for Campbell County

No. 14453 John D. McAfee, Judge

No. E2013-00441-COA-R9-CV-FILED-FEBRUARY 10, 2014

In this retaliatory discharge action brought by a former city administrator of the City of

LaFollette, Tennessee (“LaFollette”), the trial court, following a bench hearing, denied

LaFollette’s motion to strike the city administrator’s demand for a jury trial. The trial court,

however, granted LaFollette permission for interlocutory appeal on the question of whether

the city administrator’s request for a jury trial properly may be granted pursuant to the

Tennessee Public Protection Act (“TPPA”), see Tenn. Code Ann. § 50-1-304 (Supp. 2013),

despite the non-jury provision of the Tennessee Governmental Tort Liability Act (“GTLA”),

see Tenn. Code Ann. §§ 29-20-307 (Supp. 2013). We conclude that the non-jury requirement

of the GTLA applies to this TPPA claim. We therefore reverse the trial court’s denial of

LaFollette’s motion to strike the city administrator’s jury demand, and we remand to the trial

court for further proceedings without a jury.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court

Reversed; Case Remanded

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.

S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.

Jon G. Roach, Emily A. Cleveland, and Brian R. Bibb, Knoxville, Tennessee, for the

appellant, City of LaFollette.

David H. Dunaway, LaFollette, Tennessee, for the appellee, David G. Young.

OPINION

I. Factual and Procedural Background

The plaintiff, David G. Young, was the city administrator for LaFollette from August

5, 2008, until he was suspended from his duties one year later on August 4, 2009. LaFollette

terminated Mr. Young’s employment on September 1, 2009, amid allegations against him of,

inter alia, sexual harassment and harassment brought by Lynda White, the LaFollette City

Clerk at the time. Ms. White initially made her grievances known in a May 1, 2009 letter to

the mayor and city council. Mr. Young initiated the instant action on May 7, 2009, by filing

a complaint with the Campbell County Circuit Court (“trial court”), alleging, inter alia,

anticipatory and actual breach of his employment contract. LaFollette filed a motion for

summary judgment on August 18, 2009.

Meanwhile, in a companion action to the case at bar, Mr. Young filed a petition for

writ of certiorari with the Campbell County Chancery Court. On February 22, 2010, the

Chancery Court entered an order nullifying the termination of Mr. Young’s employment,

finding insufficient cause and lack of due process. LaFollette appealed. The Chancery

Court’s ruling was reversed by this Court, which held that the lower court erred in ruling that

LaFollette “acted illegally, arbitrarily, and without sufficient material evidence.” See Young

v. City of LaFollette, 353 S.W.3d 121, 127 (Tenn. Ct. App. 2011) (“Every salient fact in the

record shows that LaFollette had the right to terminate Young’s employment by a majority

vote of the City Council.”).

On February 26, 2010, Mr. Young amended his complaint in the instant Circuit Court

action by asserting, inter alia, a retaliatory discharge claim in violation of the TPPA. See

Tenn. Code Ann. § 50-1-304. Because its pending motion for summary judgment had not

yet been heard, LaFollette subsequently filed an amended motion for summary judgment and

a counter-complaint for declaratory judgment on April 9, 2010.

Following a stay in proceedings due to the appeal of the companion case, the trial

court on August 11, 2011, granted LaFollette’s amended motion for summary judgment on

all claims except Mr. Young’s sole remaining claim of retaliatory discharge brought against

LaFollette pursuant to the TPPA.1 On July 5, 2012, LaFollette filed another motion for

summary judgment, seeking dismissal of the retaliatory discharge claim. Upon a hearing

conducted November 7, 2012, the trial court denied LaFollette’s second motion for summary

1

Although Ms. White and Mr. Stanfield remain named in the style of this action, this interlocutory

appeal involves only one defendant, LaFollette, regarding the retaliatory discharge claim pursuant to the

TPPA.

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judgment. Mr. Young moved orally to set the case for trial and requested a trial by jury.

LaFollette argued that Mr. Young was not entitled to a jury trial pursuant to the GTLA. See

Tenn. Code Ann. §29-20-307. At the trial court’s request, each party submitted a written

brief regarding the issue. LaFollette subsequently filed a motion to strike Mr. Young’s jury

demand.

Following a hearing on December 10, 2012, the trial court entered an order denying

LaFollette’s motion to strike the jury demand on February 11, 2013. The trial court,

however, also granted permission to LaFollette for an interlocutory appeal to this Court on

the issue of whether Mr. Young is entitled to a jury trial. See Tenn. R. App. P. 9. This

permissive interlocutory appeal ensued.

II. Issue Presented

This Court granted an interlocutory appeal in the instant action to address the

following issue:

Whether the provision of the Tennessee Governmental Tort Liability Act

(“GTLA”) that requires claims brought against governmental entities be

decided “without the intervention of a jury,” Tennessee Code Annotated § 29-

20-307, applies to a statutory retaliatory discharge claim against a

governmental entity brought pursuant to the Tennessee Public Protection Act,

see Tennessee Code Annotated § 50-1-304.

III. Standard of Review

The issue raised in this interlocutory appeal is a question of law. We review questions

of law, including those of statutory construction, de novo with no presumption of correctness.

See Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 43 (Tenn. 2013) (citing

Mills v. Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn. 2012)). Our Supreme Court has

summarized the principles involved in statutory construction as follows:

Our “primary goal in interpreting statutes is ‘to ascertain and give effect

to the intention and purpose of the legislature.’” Stewart v. State, 33 S.W.3d

785, 791 (Tenn. 2000) (quoting Gleaves v. Checker Cab Transit Corp., 15

S.W.3d 799, 802 (Tenn. 2000)). When the statutory language is unambiguous,

we apply its plain and ordinary meaning. Planned Parenthood of Middle Tenn.

v. Sundquist, 38 S.W.3d 1, 24 (Tenn. 2000). When the statutory language is

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ambiguous, we must look to other sources, such as legislative history, to

determine the intent and purpose of the legislature. Id.

Conley v. State, 141 S.W.3d 591, 595 (Tenn. 2004); see also Cunningham, 405 S.W.3d at 43.

IV. Applicability of Tennessee Governmental Tort Liability Act’s Non-Jury Provision

to Tennessee Public Protection Act Claim

LaFollette contends that the TPPA, while it provides for removal of sovereign

immunity independent of the GTLA, does not remove a cause of action from the control of

the GTLA absent an express statutory mandate to do so. Mr. Young contends that he should

retain his right to a jury trial because the TPPA does not expressly preclude a jury trial. We

conclude that the GTLA applies to claims brought against a municipality pursuant to the

TPPA and that the instant action must therefore be tried without a jury.

Mr. Young argues that his claim is analogous to a claim brought under the Tennessee

Human Rights Act (“THRA”). See Tenn. Code Ann. §§ 4-21-101 to -702 (2012 & Supp.

2013). He acknowledges, however, that this Court’s recent decision in Sneed v. City of Red

Bank, No. E2012-02112-COA-R9-CV, 2013 WL 3326133 (Tenn. Ct. App. June 27, 2013),

perm. granted (Tenn. Nov. 12, 2013), relates directly to the interplay between the GTLA and

THRA, as well as by extension, the interplay between the GTLA and the TPPA. In Sneed,

this Court held on interlocutory appeal that “the Tennessee Governmental Tort Liability Act

applies to claims brought against a municipality pursuant to the Tennessee Human Rights

Act; therefore, that claim must also be tried without a jury.” Id. at *1. Mr. Young asks this

Court to reconsider its holding in Sneed.

The doctrine of sovereign immunity “has been part of the common law of Tennessee

for more than a century and provides that suit may not be brought against a governmental

entity unless that governmental entity has consented to be sued.” Hawks v. City of

Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997) (internal citations omitted). The GTLA,

codified in 1973, governs claims against cities and other local government agencies,

providing for circumstances when sovereign immunity is removed. See Tenn. Code Ann. §§

29-20-201 to -408 (2012 & Supp. 2013); Lucius v. City of Memphis, 925 S.W.2d 522, 525

(Tenn. 1996). The GTLA specifically provides that proceedings falling under its governance

shall be conducted without a jury. Tennessee Code Annotated § 29-20-307 provides in

pertinent part:

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The circuit courts shall have exclusive original jurisdiction over any action

brought under this chapter and shall hear and decide such suits without the

intervention of a jury, except as otherwise provided in § 29-20-313(b) . . . .

(Emphasis added).2

In Sneed, this Court further explained regarding the GTLA and the THRA:

Passage of the GTLA constituted “an act of grace through which the

legislature provided general immunity to governmental entities from tort

liability but removed it in certain limited and specified instances.” Kirby v.

Macon Cnty., 892 S.W.2d 403, 406 (Tenn. 1994). The certain limited and

specified instances are as follows:

[1] Immunity from suit of all governmental entities is removed for

injuries resulting from the negligent operation by any employee of a

motor vehicle or other equipment while in the scope of employment.

[2] Immunity from suit of a governmental entity is removed for any

injury caused by a defective, unsafe, or dangerous condition of any

street, alley, sidewalk or highway, owned and controlled by such

governmental entity. “Street” or “highway” includes traffic control

devices thereon.

[3] Immunity from suit of a governmental entity is removed for any

injury caused by dangerous or defective condition of any public

building, structure, dam, reservoir or other public improvement owned

and controlled by such governmental entity.

[4] Immunity from suit of all governmental entities is removed for

injury proximately caused by a negligent act or omission of any

employee within the scope of his employment except if the injury arises

out of [certain specific conditions].

Tenn. Code Ann. §§ 29-20-202(a), -203(a), -204(a), -205. The GTLA

provides the circuit court with “original exclusive jurisdiction” to hear any

2

Inasmuch as the exception referenced in section 313(b) involves actions naming multiple defendants

when at least one is a governmental entity or a governmental entity employee and at least one is not, the

exception does not apply to the instant action. See Tenn. Code Ann. § 29-20-313(b).

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claim brought pursuant to the act without the intervention of a jury. Tenn.

Code Ann. § 29-20-307.

For claims not falling within the certain limited and specified instances

provided for in the GTLA, the General Assembly created subsequent acts to

further remove governmental immunity. While some acts were specific to

governmental entities, others simply included governmental entities as possible

defendants. The THRA, codified in 1978 at Tennessee Code Annotated

section 4-21-101, et seq., was one such unspecific act that applied to

governmental entities as well as private citizens.

The THRA protects employees from adverse employment decisions

based upon an employee’s “race, creed, color, religion, sex, age, or national

origin.” Tenn. Code Ann. § 4-21-101. The THRA is specifically applicable

to private employers with eight or more employees and to “the state, or any

political or civil subdivision thereof.” Tenn. Code Ann. § 4-21-102(5). An

aggrieved individual may file a complaint against his or her governmental or

non-governmental employer with the Tennessee Human Rights Commission

or with the circuit or chancery courts of this state. Tenn. Code Ann. §§ 4-21-

302, -311. Unlike the GTLA, “[t]he THRA neither expressly provides for or

excludes the right to a trial by jury.” [University of Tenn. of Chattanooga v.]

Farrow, [No. E2000-02386-COA-R9-CV,] 2001 WL 935467, at *5 [(Tenn.

Ct. App. Aug. 16, 2001)].

Sneed, 2013 WL 3326133 at *2.

As with the THRA, the TPPA includes governmental entities as possible defendants

and does not expressly provide for or exclude the right to a jury trial. See Tenn. Code Ann.

§ 50-1-304. Enacted in 1990, the TPPA is the Tennessee legislature’s codification of the

common-law cause of action for retaliatory discharge. See Tenn. Code Ann. § 50-1-304;

Franklin v. Swift Transp. Co., Inc., 210 S.W.3d 521, 527 (Tenn. Ct. App. 2006). The TPPA

was revised in 1997 to include governmental entities within its definition of employers. See

2009 Pub. Acts, ch. 161, § 2. “By enacting the Public Protection Act, the legislature

recognized the importance of encouraging employees to report violations ‘of those laws and

regulations ‘intended to protect the public health, safety or welfare.’” Id. at 528 (quoting Guy

v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 537 (Tenn. 2002).

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Tennessee Code Annotated § 50-1-304 provides in pertinent part:

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

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

...

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

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

damages to which the employee may be entitled.

As this Court has explained:

To prevail under the Public Protection Act, the plaintiff must establish (1) his

status as an employee of the defendant employer; (2) his refusal to participate

in, or remain silent about, “illegal activities” as defined under the Act; (3) his

termination; and (4) an exclusive causal relationship between his refusal to

participate in or remain silent about illegal activities and his termination.

Franklin, 210 S.W.3d 521 at 528 (citing Tenn. Code Ann. § 50-1-304).

LaFollette relies on a recent Tennessee Supreme Court decision and two recent

unpublished decisions of this Court in support of its contention that the GTLA controls in

this action and precludes a jury trial. First, in Cunningham v. Williamson County Hospital

District, our Supreme Court considered whether a claim brought under the Tennessee

Medical Malpractice Act (“TMMA”), see Tenn. Code Ann. §§ 29-26-115 to -122 (2012 &

Supp. 2013), was constrained by the statute of limitations in the GTLA. See 405 S.W.3d 41,

43 (Tenn. 2013). The Supreme Court held that the claim was so constrained because the

language of the TMMA “fails to evince an express legislative intent to extend the statute of

limitations in GTLA cases.” Cunningham, 405 S.W.3d at 45-46.

Second, in Jeffrey Adair Young v. Davis, No. E2008-01974-COA-R3-CV, 2009 WL

3518162 at *5-6 (Tenn. Ct. App. Oct. 30, 2009), this Court decided the question of whether

retaliatory discharge claims brought under the TPPA must be in compliance with the GTLA

in terms of subject matter jurisdiction, specifically, whether such claims must be heard in the

circuit courts. This Court vacated the order of the chancery court and remanded for transfer

to the circuit court, explaining:

As to the Public Protection Act claim, the Plaintiff assumes that the

statute which creates a private right of action against employers, including

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governmental entities, also removes that private right of action from the

universe of the GTLA. It is clear to us that the GTLA and governmental

immunity in general still sets boundaries applicable to retaliatory discharge

claims and Public Protection Act claims. Retaliatory discharge claims that do

not satisfy the elements of the Public Protection Act are subject to the GTLA.

Baines v. Wilson County, 86 S.W.3d 575 (Tenn. Ct. App. 2002). The GTLA

prevents suits against governmental entities based on common law retaliatory

discharge. Id. at 581, 583.

Young v. Davis, 2009 WL 3518162 at *6 (stating also that “it appears to us that even claims

which satisfy the elements of the statute must be brought ‘in compliance’ with the GTLA.”).

Mr. Young distinguishes the instant action from Young v. Davis, asserting that (1) this action

does not involve a dispute regarding subject matter jurisdiction, (2) the claim in the instant

case is more analogous to a civil rights claim under the THRA, and (3) the decision in Young

v. Davis is persuasive rather than controlling authority.

This Court was presented with similar arguments in Sneed, wherein the plaintiff

brought his claim under the THRA and argued that his case was distinguishable from Young

v. Davis “because the court in Young [v. Davis] merely considered a question of venue for

a TPPA claim.” See Sneed, 2013 WL 3326133 at *4. In reversing the trial court’s ruling that

the GTLA did not preclude a jury trial on the THRA claim, this Court concluded:

Like the TPPA and the newly amended TMMA, the THRA is an act that

created a private right of action against governmental entities and private

citizens. Tenn. Code Ann. § 4-21-101. It stands to reason that such acts

would generally govern the way in which claims must be brought and tried,

regardless of whether the defendant was a governmental entity or a private

citizen. However, differentiating between a governmental entity and a private

citizen is appropriate and necessary because the application of general

provisions contained in an act to private citizens does not implicate the

doctrine of sovereign immunity, whereas applying the same provisions to

governmental entities has different implications. See generally Whitmore v.

Shelby Cnty. Govt., No. W2010-01890-COA-R3-CV, 2011 WL 3558285, at

*7 (Tenn. Ct. App. Aug. 15, 2011) (holding that state entities could not use the

saving statute to re-file a THRA claim).

While the GTLA created private rights of action against governmental

entities, it was also the groundbreaking act that statutorily removed general

common law sovereign immunity. As such, we conclude that it is still

generally applicable to suits against governmental entities unless the act at

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issue specifically provides otherwise or is only applicable to governmental

entities and provides its own remedy. See generally Cruse v. City of

Columbia, 922 S.W.2d 492, 496-97 (Tenn. 1996) (holding the GTLA

inapplicable when the suit was filed pursuant to an independent statute only

applicable to government entities). As relevant to this case, the GTLA

provides that suits must be brought in circuit court without the intervention of

a jury. Tenn. Code Ann. § 29-20-307. In contrast, the THRA provides for

suits to be brought in either chancery or circuit court but is silent as to whether

claims must be tried with or without the intervention of a jury. Tenn. Code

Ann. § 4-21-311. The THRA is also silent as to whether the choice of venue

provision specifically applies to claims against governmental entities in

contravention of the GTLA. In the absence of an express provision to the

contrary, we hold that the GTLA applies to claims brought against a

municipality pursuant to the THRA, thereby requiring the claim to be tried in

circuit court without the intervention of a jury. Accordingly, we reverse the

decision of the trial court.

Sneed, 2013 WL 3326133 at *4.

As to Mr. Young’s argument regarding the authority of this Court’s decisions in

unpublished cases, such as Young v. Davis and Sneed, we note that “[w]hile it is true that

unpublished opinions are not controlling, Tenn. S. Ct. Rule 4(G) specifically states that

unpublished cases constitute persuasive authority.”3 Edwards v. City of Memphis, 342

S.W.3d 12, 17-18 (Tenn. Ct. App. 2010); see, e.g., Smith County Regional Planning Comm’n

v. Hiwassee Village Mobile Home Park, LLC, 304 S.W.3d 302, 318 (Tenn. 2010) (analyzing

several unpublished opinions of this Court in characterizing the range of factual situations

capable of qualifying real property for grandfather clause protection from zoning

3

Rule 4(G) of the Rules of the Tennessee Supreme Court provides:

(G)(1) An unpublished opinion shall be considered controlling authority between

the parties to the case when relevant under the doctrines of the law of the case, res judicata,

collateral estoppel, or in a criminal, post-conviction, or habeas corpus action involving the

same defendant. Unless designated “Not For Citation,” “DCRO” or “DNP” pursuant to

subsection (E) of this rule, unpublished opinions for all other purposes shall be considered

persuasive authority. Unpublished opinions of the Special Workers’ Compensation Appeals

Panel shall likewise be considered persuasive authority.

(2) Opinions reported in the official reporter, however, shall be considered

controlling authority for all purposes unless and until such opinion is reversed or modified

by a court of competent jurisdiction.

(Emphasis in original.)

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regulations). We recognize that our Supreme Court, having granted certiorari to the appellant

in Sneed, will address and provide controlling authority for the issue at hand in this

interlocutory appeal. See Tenn. S. Ct. R. 4(C) (“If an application for permission to appeal

is filed and granted, the opinion of the intermediate appellate court shall not be published in

the official reporter, unless otherwise directed by the Tennessee Supreme Court.”).

Mr. Young, as did the plaintiff in Sneed, asks us to reject our prior reasoning in favor

of that contained within a federal district court order, namely Lee v. Maury County,

Tennessee Board of Education, 2011 U.S. Dist. LEXIS 33258 (M.D. Tenn. Mar. 29, 2011).

In Lee, the federal court applied Tennessee law to rule that for a plaintiff bringing an action

alleging racial and gender discrimination in employment pursuant to Title VII, the THRA,

and 42 U.S.C. § 1981, “the TGTLA limitation on jury trials is not applicable . . . .” We note

first, as we did in Sneed, that the Lee order is a district court decision and as such, is not

binding on this Court. See Gossett v. Tractor Supply Co., 320 S.W.3d 777, 785 n.3 (Tenn.

2010) (noting that even opinions of federal intermediate courts are “only persuasive authority

and not binding” on Tennessee state courts); Sneed, 2013 WL 3326133 at *4. Moreover, we

find the facts upon which the district court based its decision in Lee to be highly

distinguishable from the instant action in that constitutional questions of race and gender

discrimination, going beyond an action brought only pursuant to the THRA or TPPA, were

at issue in Lee. Mr. Young’s reliance on Lee is unpersuasive.

Upon our thorough review of the issue presented and the applicable law, we determine

that the rationale employed in Sneed applies to the instant action as well. The GTLA

provides that “suits must be brought in circuit court without the intervention of a jury.”

Sneed, 2013 WL 3326133 at *4 (citing Tenn. Code Ann. § 29-20-307). The TPPA, like the

THRA, is silent as to whether claims must be tried with or without the intervention of a jury.

See Tenn. Code Ann. 50-1-304; see also Sneed, 2013 WL 3326133 at *4. In the absence of

an express provision to the contrary, we hold that the GTLA applies to claims brought against

a municipality pursuant to the TPPA, thereby requiring the claim to be tried without the

intervention of a jury. Accordingly, we reverse the decision of the trial court.

V. Conclusion

For the reasons stated above, we reverse the trial court’s denial of LaFollette’s motion

to strike Mr. Young’s jury demand. LaFollette’s motion to strike the jury demand in this

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action is granted. We remand to the trial court for further proceedings without the

intervention of a jury. Costs on appeal are assessed to Mr. Young.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

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