A New Avenue for Retaliatory Discharge Claims

The Tennessee Court of Appeals just made a retaliatory discharge plaintiff's task a little easier. The plaintiff in Little v. Eastgate of Jackson, LLC, No. W2006-01846-COA-R9-CV, 2007 WL 1202431 (Tenn. Ct. App. 2007), was a clerk at a beer and tobacco store. While working, he witnessed the physical assault by an unidentified man of a woman across the street from the store. The store clerk grabbed a baseball bat from under the store counter, ran out of the store, and confronted the man, who fled the scene. The clerk brought the woman into the store and called the police. Two days later, the clerk was fired for leaving the store unattended while he went to help the victim.

The clerk sued the store for retaliatory discharge, claiming that his termination violated the public policy of the State of Tennessee. The store responded to the clerk's complaint with a motion to dismiss, arguing that the termination did not violate a clear public policy of the state. The trial court denied the store's motion, finding that the clerk stated a valid claim. Specifically, the trial court found that 'it is against the public policy' of the state of Tennessee, most particularly evidenced by Tenn. Code Ann. ' 39-11-612: Defense of Third Person, to 'discharge an employee for coming to the aid of a third party being assaulted or in imminent danger of bodily harm.'

The store appealed the denial of its motion to dismiss. After acknowledging that Tennessee is an employment-at-will state and that the retaliatory discharge exception to the employment-at-will doctrine should be narrowly construed, the Tennessee Court of Appeals considered the only similar case cited by the parties, Gardner v. Loomis Armored, 913 P.2d 377 (Wash. 1996).

Gardner v. Loomis Armored

The plaintiff in Gardner was the driver of an armored car for an armored car company. Upon seeing a bank employee chased out of a bank by a knife-wielding assailant, the plaintiff left his armored car, tackled the suspect, and disarmed him. He was terminated for leaving the truck unattended in violation of company policy. The issue facing the Washington Supreme Court was whether the situation implicated the clear public policy of the State of Washington. The court held that it did; after all, the court noted, the statutes permit individuals to use otherwise illegal force to protect the individual or others from injury. The court concluded: 'The public policy of saving persons from life-threatening situations satisfies the clarity element.'

The Gardner court went on to examine whether permitting an employer to discharge an employee in those circumstances would place the public policy in jeopardy. The court found that to prove that it does, a plaintiff must show that his conduct 'directly relates to the public policy or [is] necessary for the effective enforcement of the public policy,' and that permitting employers to discharge employees in such circumstances would discourage others from engaging in the desirable conduct. Accordingly, the armored car driver's activity was protected from retaliatory discharge. The Gardner court cautioned, however, that the public policy implicated in its decision is narrow: it applies only to circumstances where citizens rescue others from life-threatening situations, and is not to be viewed as a broader 'Good Samaritan' doctrine that protects all conduct undertaken to aid another.

The Little Court's Ruling

The Tennessee court in Little found the reasoning of Gardner to be persuasive. The court noted that as in Washington, Tennessee statutes reflect the high priority on the sanctity of human life; for example, Tennessee law absolves citizens from criminal liability for using force to protect a third person where intervention is 'reasonably necessary.' Little echoed the Gardner court's warning that its opinion should not be construed as a 'Good Samaritan' doctrine protecting all conduct undertaken to protect another. Rather, the court found that the public policy encompasses only those actions taken by employees to rescue or protect another 'reasonably believed to be in imminent danger of death or serious bodily harm.' The court also noted that in some circumstances, the employer's reason for discharging the employee may be compelling enough to override the public policy; hence, employers can always assert an 'overriding justification' defense to its actions, and this defense must be considered in light of the public policy at stake.

The court upheld the lower court's denial of the employer's motion to dismiss, requiring on remand that the store clerk prove that permitting an employer to terminate in similar circumstances would discourage employees from rescuing others and to prove that the conduct he engaged in actually caused his discharge. The store would then have an opportunity to present a defense, such as whether it had a policy that should override the public policy at stake. The court opined that 'this [will] be a narrow exception to the at-will doctrine, which will not overly burden an employer's ability to enforce work rules and make personnel decisions.'

Conclusion

The impact of this case on employers should be minimal. The exception is necessarily a narrow one, and the plaintiff in such cases will bear the burden of showing that he acted not merely to assist others, but to protect human life. Moreover, if the employer has a legitimate reason for terminating the employee that overrides the public policy at issue (one can think of numerous examples, such as where the employee's abandonment of his duties to assist another put individuals charged to his care at risk), the termination may stand. Clearly, employers' concerns for liability and for protection of their property will not suffice to override a public interest in protecting human life. This decision opens a new window for employees seeking to assert retaliatory discharge claims, but it appears that the opening will be narrow indeed.

Matthew C. Lonergan, a member of this newsletter's Board of Editors, practices at Boult, Cummings, Conners & Berry, PLC, Nashville. Martha Boyd is an associate in the firm's litigation department.

As courts across the country continue to visit the issue of employment-at-will, the results show states continuing to chip away at the once mighty doctrine. Tennessee, which has been a long-standing observer of the employment-at-will doctrine, continues to hold firm, albeit not without some erosion of the doctrine. The theory of retaliatory discharge has become a commonplace cause of action in most employment lawsuits. However, a recent Tennessee decision opens the window a little further for plaintiffs seeking to establish a public policy argument in support of their wrongful discharge claim.

One of the numerous exceptions to the doctrine of at-will employment in Tennessee is the tort of retaliatory discharge. The four elements of a retaliatory discharge claim are: 1) an employment-at-will relationship with the employee; 2) the discharge of the employee; 3) the discharge resulted from the employee's attempt to exercise a statutory or constitutional right, or for some other reason that violates a 'clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision'; and 4) the employee's exercise of
protected rights or compliance with a clear public policy was a substantial factor in the employer's decision to terminate the employee. Crews v. Buckman Labs. Int'l, In c., 78 S.W.3d 852, 857 (Tenn. 2002). The third element is often the most difficult for employees to establish; after all, who knows what a 'clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision' is, anyway?

Little v. Eastgate of Jackson

The Tennessee Court of Appeals just made a retaliatory discharge plaintiff's task a little easier. The plaintiff in Little v. Eastgate of Jackson, LLC, No. W2006-01846-COA-R9-CV, 2007 WL 1202431 (Tenn. Ct. App. 2007), was a clerk at a beer and tobacco store. While working, he witnessed the physical assault by an unidentified man of a woman across the street from the store. The store clerk grabbed a baseball bat from under the store counter, ran out of the store, and confronted the man, who fled the scene. The clerk brought the woman into the store and called the police. Two days later, the clerk was fired for leaving the store unattended while he went to help the victim.

The clerk sued the store for retaliatory discharge, claiming that his termination violated the public policy of the State of Tennessee. The store responded to the clerk's complaint with a motion to dismiss, arguing that the termination did not violate a clear public policy of the state. The trial court denied the store's motion, finding that the clerk stated a valid claim. Specifically, the trial court found that 'it is against the public policy' of the state of Tennessee, most particularly evidenced by Tenn. Code Ann. ' 39-11-612: Defense of Third Person, to 'discharge an employee for coming to the aid of a third party being assaulted or in imminent danger of bodily harm.'

The store appealed the denial of its motion to dismiss. After acknowledging that Tennessee is an employment-at-will state and that the retaliatory discharge exception to the employment-at-will doctrine should be narrowly construed, the Tennessee Court of Appeals considered the only similar case cited by the parties, Gardner v. Loomis Armored , 913 P.2d 377 (Wash. 1996).

Gardner v. Loomis Armored

The plaintiff in Gardner was the driver of an armored car for an armored car company. Upon seeing a bank employee chased out of a bank by a knife-wielding assailant, the plaintiff left his armored car, tackled the suspect, and disarmed him. He was terminated for leaving the truck unattended in violation of company policy. The issue facing the Washington Supreme Court was whether the situation implicated the clear public policy of the State of Washington. The court held that it did; after all, the court noted, the statutes permit individuals to use otherwise illegal force to protect the individual or others from injury. The court concluded: 'The public policy of saving persons from life-threatening situations satisfies the clarity element.'

The Gardner court went on to examine whether permitting an employer to discharge an employee in those circumstances would place the public policy in jeopardy. The court found that to prove that it does, a plaintiff must show that his conduct 'directly relates to the public policy or [is] necessary for the effective enforcement of the public policy,' and that permitting employers to discharge employees in such circumstances would discourage others from engaging in the desirable conduct. Accordingly, the armored car driver's activity was protected from retaliatory discharge. The Gardner court cautioned, however, that the public policy implicated in its decision is narrow: it applies only to circumstances where citizens rescue others from life-threatening situations, and is not to be viewed as a broader 'Good Samaritan' doctrine that protects all conduct undertaken to aid another.

The Little Court's Ruling

The Tennessee court in Little found the reasoning of Gardner to be persuasive. The court noted that as in Washington, Tennessee statutes reflect the high priority on the sanctity of human life; for example, Tennessee law absolves citizens from criminal liability for using force to protect a third person where intervention is 'reasonably necessary.' Little echoed the Gardner court's warning that its opinion should not be construed as a 'Good Samaritan' doctrine protecting all conduct undertaken to protect another. Rather, the court found that the public policy encompasses only those actions taken by employees to rescue or protect another 'reasonably believed to be in imminent danger of death or serious bodily harm.' The court also noted that in some circumstances, the employer's reason for discharging the employee may be compelling enough to override the public policy; hence, employers can always assert an 'overriding justification' defense to its actions, and this defense must be considered in light of the public policy at stake.

The court upheld the lower court's denial of the employer's motion to dismiss, requiring on remand that the store clerk prove that permitting an employer to terminate in similar circumstances would discourage employees from rescuing others and to prove that the conduct he engaged in actually caused his discharge. The store would then have an opportunity to present a defense, such as whether it had a policy that should override the public policy at stake. The court opined that 'this [will] be a narrow exception to the at-will doctrine, which will not overly burden an employer's ability to enforce work rules and make personnel decisions.'

Conclusion

The impact of this case on employers should be minimal. The exception is necessarily a narrow one, and the plaintiff in such cases will bear the burden of showing that he acted not merely to assist others, but to protect human life. Moreover, if the employer has a legitimate reason for terminating the employee that overrides the public policy at issue (one can think of numerous examples, such as where the employee's abandonment of his duties to assist another put individuals charged to his care at risk), the termination may stand. Clearly, employers' concerns for liability and for protection of their property will not suffice to override a public interest in protecting human life. This decision opens a new window for employees seeking to assert retaliatory discharge claims, but it appears that the opening will be narrow indeed.

Matthew C. Lonergan, a member of this newsletter's Board of Editors, practices at Boult, Cummings, Conners & Berry, PLC, Nashville. Martha Boyd is an associate in the firm's litigation department.