Joseph Sweat v. City of McMinnville

03/23/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

December 6, 2017 Session

JOSEPH SWEAT V. CITY OF MCMINNVILLE

Appeal from the Circuit Court for Warren County

No. 254 Larry B. Stanley, Jr., Judge

No. M2017-01141-COA-R3-CV

The plaintiff, a former firefighter with the City of McMinnville Fire Department, brought

this retaliatory discharge claim against his previous employer under the Tennessee Public

Protection Act. The City filed a motion for summary judgment arguing that the plaintiff

was unable to prove that the City’s proffered reason for the discharge was pretextual.

Finding no genuine dispute, the trial court granted the motion and dismissed the

complaint. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and W. NEAL MCBRAYER, JJ., joined.

Todd G. Cole and Shea T. Hasenauer, Brentwood, Tennessee, for the appellant, Joseph

Sweat.

Rachel M. Casias, Nashville, Tennessee, for the appellee, City of McMinnville,

Tennessee.

OPINION

On June 20, 2001, the City of McMinnville (“the City”) hired Joseph Sweat

(“Plaintiff”) as a firefighter. In December 2013, Plaintiff, along with twenty-seven other

firefighters, signed and presented a document to the McMinnville Human Resources

Director outlining safety concerns in regard to the actions of Fire Chief Keith Martin

(“Chief Martin”). Plaintiff also individually sent a handwritten letter detailing six

complaints to the same Human Resources Director. This information was forwarded to

Tennessee Municipal Fire Consultant, Dennis Wolfe, who conducted an investigation of

the firefighters’ concerns.

At the conclusion of his investigation, Mr. Wolfe determined that many of the

firefighters’ complaints did not rise to the level of safety violations. Furthermore, he did

not find any evidence of illegal activity. He did, however, identify several safety

concerns, such as deficiencies in operating procedures and training that were not

addressed by the firefighters. Mr. Wolfe also identified issues with camaraderie within

the fire department stemming from a poor working relationship between the firefighters

and Chief Martin. Mr. Wolfe presented the findings of his report to City Alderman Mike

Neal. After receiving this report, Mr. Neal engaged in a reorganization of the fire

department that included terminating the employment of both Chief Martin and Plaintiff

on March 20, 2014. Police Chief Bryan Denton (“Chief Denton”) was then hired as the

interim Fire Chief, a position he had held on three prior occasions.

Plaintiff filed a complaint against the City on February 13, 2015, in Warren

County Circuit Court, alleging he was discharged in a retaliatory manner in violation of

the Tennessee Public Protection Act (“TPPA”), also known as the Whistleblower Act.

Upon the conclusion of discovery, Plaintiff filed a motion for summary judgment on

December 8, 2016, arguing he established a prima facie case of retaliatory discharge

under the TPPA. Specifically, he contended that he complained about safety issues that

violated the law and that he was fired solely because he refused to participate in, or

remain silent about, those illegal activities. On April 13, 2017, the trial court denied

Plaintiff’s motion for summary judgment, finding that genuine issues of material facts

existed.

In the interim, the City filed its motion for summary judgment on January 5, 2017.

The City argued that it terminated Plaintiff for reasons other than Plaintiff’s complaints;

specifically, Plaintiff’s inability to work with effective leadership, for making sexually

harassing phone calls from the firehouse to a private citizen, and going outside the chain

of command. The City also asserted that Plaintiff was unable to show that any of these

proffered reasons were pretextual. On May 9, 2017, the trial court granted the City’s

motion for summary judgment, finding “Plaintiff has failed to establish that the City’s

explanation of his discharge is pretextual or unfounded. There are no genuine issues as to

any material facts, therefore, the Defendant (City) is entitled to summary judgment.”

Plaintiff then timely appealed.

ISSUES

The dispositive issue presented for our review is whether Plaintiff was terminated

solely for engaging in activity protected under the TPPA.1 Plaintiff argues that he was

1

Plaintiff raised the following issues in his brief:

(continued…)

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terminated solely because he refused to participate in, or remain silent about illegal

activities. In response, The City argues that Plaintiff was fired because of his history of

work-related misconduct and insubordination that adversely affected employee morale.

STANDARD OF REVIEW

This court reviews a trial court’s decision on a motion for summary judgment de

novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622

(Tenn. 1997)). Accordingly, this court must make a fresh determination of whether the

requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.; Hunter v. Brown, 955

S.W.2d 49, 50-51 (Tenn. 1997). In so doing, we consider the evidence in the light most

favorable to the non-moving party and draw all reasonable inferences in that party’s

favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).

Summary judgment should be granted when “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for

summary judgment does not bear the burden of proof at trial, it may satisfy its burden of

production “either (1) by affirmatively negating an essential element of the nonmoving

party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the

summary judgment stage is insufficient to establish the nonmoving party’s claim or

defense.” Rye, 477 S.W.3d at 264 (emphasis in original).

When a motion for summary judgment is made and supported as provided in

Tenn. R. Civ. P. 56, the nonmoving party may not rest on the allegations or denials in its

pleadings. Id. Instead, the nonmoving party must respond with specific facts showing that

I. Under Tenn. R. Civ. P. 56.04, should the Circuit Court’s grant of Appellee’s Motion

for Summary Judgment be reversed because there was a genuine issue of material fact as

to the Appellant’s Tennessee Public Protection Act (“TPPA”) claim?

A. Could a reasonable trier of fact find that the Appellant refused to participate in or

remain silent about illegal activity?

B. Could a reasonable trier of fact find that the Appellee terminated the Appellant’s

employment solely because the Appellant refused to participate in or remain silent

about the illegal activity?

The City asserts the only issue is as follows:

I. Under Tenn. R. Civ. P. 56.04, should the Circuit Court’s grant of the Appellee’s

Motion for Summary Judgment be upheld because there was not a genuine issue of

material facts as to the Appellant’s Tennessee Public Protection Act (“TPPA”) claim.

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there is a genuine issue for trial. Id. A fact is material “if it must be decided in order to

resolve the substantive claim or defense at which the motion is directed.” Byrd v. Hall,

847 S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury could

legitimately resolve that fact in favor of one side or the other.” Id.

ANALYSIS

I. TENNESSEE PUBLIC PROTECTION ACT

The TPPA 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.

(c)(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, subject to the limitations

set out in Tenn. Code Ann. § 4-21-313.

Tenn. Code Ann. § 50-1-304 (b)-(c)(1) (emphasis added).

A claim under the TPPA differs from a common-law retaliatory discharge claim in

two respects. First, the common-law cause of action is only available to private-sector

employees, whereas the TPPA also extends protection to public employees. Williams v.

City of Burns, 465 S.W.3d 96, 110 (Tenn. 2015) (citing Guy v. Mut. of Omaha Ins. Co.,

79 S.W.3d 528, 537 (Tenn. 2002)). Second, the TPPA places a higher burden on the

plaintiff. Under the common law, a plaintiff is only required to show that retaliation for

protected conduct was a “substantial factor” motivating the termination of the plaintiff’s

employment. Id. To prevail under the TPPA, the plaintiff must prove that retaliation for

engaging in protected conduct was the “sole reason” behind the employer’s decision to

terminate the plaintiff. Id.

A plaintiff asserting a claim under the TPPA must prove four elements:

(1) the plaintiff was an employee of the defendant;

(2) the plaintiff refused to participate in or remain silent about illegal

activity;

(3) the defendant employer discharged or terminated the plaintiff’s

employment; and

(4) the defendant terminated the plaintiff’s employment solely for the

plaintiff’s refusal to participate in or remain silent about the illegal activity.

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Id. at 111 (Tenn. 2015) (citing Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 26-27

(Tenn. 2011)).

These essential elements are assessed under the statutory burden-shifting

framework provided by the TPPA “to be applied to all claims under the TPPA, both for

summary judgment motions and for trial.”2 Williams, 465 S.W.3d at 112 n.15 (citing

2011 Tenn. Pub. Acts ch. 461). Tenn. Code Ann. § 50-1-304(f) calls for a three pronged

analysis, which we summarize as follows:

(1) First, the plaintiff has the burden of establishing a prima facie case of

retaliatory discharge by a preponderance of the evidence;

(2) If the plaintiff establishes a prima facie case for retaliatory discharge, the

defendant must produce evidence of one or more legitimate, non-retaliatory

reasons for the discharge. This is a burden of production, not persuasion;

(3) If the defendant produces evidence of a non-retaliatory reason for the

discharge, 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 only pretext for

unlawful retaliation.

This statutory burden-shifting framework is “virtually indistinguishable from the

McDonnell Douglas/Burdine [burden-shifting framework].” Williams, 465 S.W.3d at 112

2

Our Supreme Court in Williams v. City of Burns, 465 S.W.3d 96, 112 n.15 (Tenn. 2015) states

that “[i]n 2011, the Legislature amended Section 50–1–304 to add a subsection (g), that set forth a

statutory burden-shifting framework to be applied to all claims under the TPPA, both for summary

judgment motions and for trial. 2011 Tenn. Pub. Acts ch. 461 (enacted, effective June 10, 2011).” The

footnote goes on to read:

The statute was amended in response to this Court’s decision in Gossett v. Tractor Supply

Co., 320 S.W.3d 777, 785 (Tenn. 2010) (holding that “the McDonnell Douglas burden-

shifting framework is inapplicable at the summary judgment stage because it is

incompatible with Tennessee summary judgment jurisprudence” set out in Hannan v.

Alltel Pub’g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008)). In the second appeal in this case,

following the trial, the Court of Appeals indicated that the statutory framework found in

the amended TPPA applied at trial in this case. Williams, 2013 WL 4068180, at *2. This

was error, because Captain Williams’ claim arose well before the 2011 effective date of

the amendment. However, because the analytical framework set forth in the amended

TPPA is virtually indistinguishable from the McDonnell Douglas/ Burdine approach, the

Court of Appeals’ error made no real difference in the analysis. We note that Gossett

changed only the standard applicable to summary judgment motions, not the analytical

framework to be applied at trial. Gossett, 320 S.W.3d at 785.

Williams, 465 S.W.3d at 112 n.15.

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n.15. However, the second prong of the framework must be “refined” when applied to a

claim under the TPPA. See id. at 115. Under the TPPA, if the plaintiff succeeds in

establishing a prima facie case of retaliatory discharge, the defendant need not proffer

evidence that unlawful retaliation played no part in its decision to terminate the plaintiff.

Id. Rather, the defendant need only produce “admissible evidence showing that unlawful

retaliation was not the sole cause of the employment action.” Id. (emphasis in original).

Further, the defendant’s proffered non-retaliatory reason for the discharge “need not be a

sound one; it need only be a reason other than retaliation.” Id. at 115 (emphasis in

original). At all times, the plaintiff bears the ultimate “burden of persuading the trier of

fact that the plaintiff has been the victim of unlawful retaliation.” Tenn. Code Ann. § 50-

1-304(f).

II. APPLICATION OF TENNESSEE PUBLIC PROTECTION ACT BURDEN SHIFTING

Once a plaintiff establishes a prima facie case of retaliatory discharge and a

defendant proffers some legitimate, non-discriminatory reason for the discharge, “the

[TPPA] burden-shifting framework falls away and the trier of fact is left to determine the

ultimate question of retaliation.” Williams, 465 S.W.3d at 118 (quoting Gibson v. City of

Louisville, 336 F.3d 511, 513 (6th Cir. 2003)) (internal alterations omitted). “The

question is not whether the employer’s decision was sound, but whether the employer’s

asserted reason for the adverse employment decision is pretextual.” Id. at 119 (quoting

Versa v. Policy Studies, Inc., 45 S.W.3d 575, 581 (Tenn. Ct. App. 2000)). “Pretext is

typically shown in one of three ways: (1) by establishing that the employer’s proffered

reasons have no basis in fact, (2) by establishing that the proffered reasons did not

actually motivate the discharge, or (3) by establishing that they were insufficient to

motivate the discharge.” Id. In other words, to establish pretext, an employee must show

that “the employer lied about the reason it gave for terminating the plaintiff’s

employment, in order to mask its true retaliatory motive.” Id.

Here, the trial court relied on Versa v. Policy Studies, Inc., to hold that Plaintiff

could not meet his burden of establishing that the City’s proffered reasons for his

termination were pretextual. The trial court’s order, in relevant part, reads:

The Plaintiff must produce evidence that the [defendant] lied about its

proffered reasons for dismissal. In this matter there were twenty-six other

firefighters who reported the same issues that the Plaintiff did concerning

the fire chief and were not terminated. The City contends that Plaintiff was

terminated because of several issues including: the Plaintiff’s inability to

work with effective leadership, for making sexual harassing phone calls

from the firehouse to a private citizen, and going outside the chain of

command. The Plaintiff has several written reprimands for violating City

policy.

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Plaintiff argues that the trial court erred in its grant of summary judgment because

there is a genuine issue of material fact as to whether the City’s proffered reasons for

terminating Plaintiff’s employment were pretextual. Plaintiff supports his argument with

three key facts: the City had previously given Plaintiff awards commending his job

performance; the temporal proximity between when he filed complaints against Chief

Martin and when he was terminated; and Plaintiff submitted a handwritten letter detailing

six complaints, in addition to the complaint signed by twenty-seven other firefighters.

Collectively, Plaintiff argues that these facts show that a genuine issue of material fact

exists as to whether the City’s proffered reasons for his termination were pretextual.

Conversely, the City contends there are no genuine issues of material fact and Plaintiff

failed to show that a reasonable trier of fact could determine the City’s proffered reasons

for his discharge (1) have no basis in fact, (2) did not motive Plaintiff’s discharge, or (3)

were not sufficient to motivate Plaintiff’s discharge. Accordingly, we will analyze each

factor.

A. Factual Basis for Termination

An employer’s proffered reasons have no basis in fact when the decision to

terminate the employee was based on facts that were not true. Williams, 465 S.W.3d at

119 (citing Versa, 45 S.W.3d at 581).

In his deposition, Plaintiff admitted to calling the McMinnville 911 center in 2011

to complain about the city’s policies for dispatching emergency services. Plaintiff does

not dispute that he received a reprimand from Chief Denton, interim fire chief at the time,

for violating policy by going outside the chain of command. Rather, Plaintiff contends

that the reprimand was only a “coaching session” and not a violation of policy.

Regardless of his interpretation of the “session,” Plaintiff testified that he did receive a

reprimand and that he signed it.

Plaintiff additionally admitted to making a phone call from the fire house to a

woman whose name and phone number he had gotten off the internet. Chief Denton

testified that Plaintiff had made phone calls from the fire house to a woman. Chief

Denton further testified that the phone calls were inappropriate and ironically, were calls

made to his nephew’s girlfriend. Chief Denton, who was serving as Chief of Police at the

time, stated that he called the current fire chief, who agreed to handle the situation.3

Although Plaintiff never acknowledged that he made sexually harassing phone calls, he

admitted in his deposition that at one time, firefighters kept a “list on the desk of the fire

station” containing the names of single women that they had gotten off the internet, and

that he called one of these women “to talk.” Furthermore, Plaintiff testified,

3

It appears Chief Denton talked to Chief Lawrence, but this fact is not entirely clear from the

record.

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Chief Lawrence called me into his office and asked if I had made a phone

call to a woman who had called in and said that somebody had called her.

And from my perspective at the time, there were some guys, and I don’t

know who they were, but they were getting online or getting singles or

names of women online somehow.

And they had left a list there on the desk at the fire station, and I was

wrong. I -- I called a person. I called her and -- and I don’t know if this was

me because like I said, others were calling and the chief didn’t know who

was calling. He was guessing. So this could have been me that made that

phone call to that woman, but it was, you know, to talk and she didn’t want

to talk. So I politely excused myself, but if it was her, she called the chief.

And I know I wrote I’m innocent here, but I could have been guilty.

Plaintiff puts forth no evidence to establish that either incident did not occur or

that either was “based on facts that [were] not true.” Williams, 465 S.W.3d at 119.

B. Reasons for Plaintiff’s Discharge

To show that the employer’s proffered reasons did not motivate the discharge, an

employee may “either produce evidence that the adverse employment decision was more

likely motivated by retaliation or ‘show that the employer’s explanation is not credible.’”

Williams, 465 S.W.3d at 119 (quoting Versa, 45 S.W.3d at 581).

To challenge the City’s assertion that Plaintiff was terminated for prior

misconduct and insubordination, Plaintiff points to the fact that he was the valedictorian

of his Recruit-Firefighter I Class and received the Firefighter of the Year award in 2009,

among other accomplishments. He also argues that the City’s proffered reasons are

pretext because the misconduct and insubordinate behavior alleged by the City occurred

years prior to Plaintiff’s termination, whereas Plaintiff’s protected activity occurred

approximately three months before his termination. The City responded to these

conclusory allegations with the following facts.

In Alderman Neal’s deposition, he testified that before Chief Martin was

terminated, Chief Martin provided a list of potential firefighters he believed should be

fired. Alderman Neal conducted an investigation into the names Chief Martin provided

and after consulting with Chief Denton and Human Resources Administrator Jennifer

Rigsby, Alderman Neal made the determination to terminate Plaintiff and one other

firefighter. Notably, the other twenty-six firemen who signed the petition along with

Plaintiff were not fired.

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Both Chief Denton and Ms. Rigsby testified that they supported Plaintiff’s

termination as a way of improving morale in the fire department. They both also provided

reasons unrelated to Plaintiff’s protected activity to support his termination. Moreover,

during his previous tenure as interim fire chief, Chief Denton had counseled Plaintiff for

going outside the chain of command. Chief Denton stated that he had also been informed

by other firefighters that Plaintiff conducted himself in an unprofessional manner in

public. Ms. Rigby testified that she supported Plaintiff’s termination because of his work-

related misconduct and unprofessional behavior that she became aware of in her capacity

as the McMinnville Human Resources Coordinator.

Alderman Neal, Chief Denton, and Ms. Rigsby provided detailed reasons for

Plaintiff’s termination, all of which were unrelated to activity protected by the TPPA, and

Plaintiff has failed to establish that the testimony of Alderman Neal, Chief Denton, and

Ms. Rigsby “[was] not credible” or that their decision to terminate Plaintiff was “more

likely motivated by retaliation.” Williams, 465 S.W.3d at 119.

C. Sufficiency of Reasons for Plaintiff’s Discharge

To show that an employer’s proffered reason for an employee’s discharge is

insufficient, “the employee must produce evidence that other employees who engaged in

substantially the same non-protected conduct were not fired.” Williams, 465 S.W.3d at

119. Plaintiff argues that he is uniquely situated because he submitted a handwritten letter

detailing six complaints in addition to the complaint submitted by twenty-eight

firefighters. This argument is misplaced because the focus in this prong of the TPPA

pretext analysis is on non-protected conduct. The non-protected work-related conduct

Plaintiff engaged in was, inter alia, repeatedly going outside of the chain of command,

unprofessional conduct in public, and adversely affecting employee morale. Significantly,

Plaintiff has failed to produce evidence that other firefighters who engaged in similar

work-related misconduct were not terminated. See id. Therefore, Plaintiff has not

established that “other employees who engaged in substantially the same non-protected

conduct were not fired.” Id. In fact, of the twenty-eight firefighters who complained to

the McMinnville City Council about Chief Martin, only Plaintiff and one other were

terminated. Significantly, the other firefighter who was terminated also had a history of

work-related misconduct and insubordination.

Finally, unlike a traditional case under the TPPA, where an employee files a

complaint against a supervisor and is terminated, while the supervisor remains employed,

the City terminated both Plaintiff and Chief Martin. This provides further proof that

Plaintiff’s termination was not retaliatory, but was rather an effort by the City of

McMinnville to improve the morale and functioning of its fire department.

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In weighing the evidence in the light most favorable to Plaintiff, we conclude that

no reasonable trier of fact could find that Plaintiff’s protected activity under the TPPA

was the sole reason for his discharge.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs

of appeal assessed against appellant.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

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