Daniel Richmond v. Vanguard Healthcare Services, LLC ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 13, 2015 Session
DANIEL RICHMOND V. VANGUARD HEALTHCARE SERVICES, LLC ET AL.
Appeal from the Circuit Court for Bedford County
No. 2013-CV-12702 Franklin L. Russell, Judge
No. M2014-02461-COA-R3-CV – Filed January 29, 2016
The former administrator of an assisted living facility appeals the summary dismissal of
his claim for retaliatory discharge under the Tennessee Public Protection Act (“TPPA”),
Tenn. Code Ann. § 50-1-304, and common law. Plaintiff contends he was fired in
retaliation for initiating an internal investigation and submitting an internal report to his
supervisors concerning an incident that arose when the son of an elderly resident
observed an old bandage stuck to the bottom of his mother‟s foot, which was revealed
when her sock was removed in order to check the dressing for a wound on her ankle.
Defendants contend Plaintiff‟s claims are legally deficient because there was no neglect
or illegal activity to report, and that Plaintiff grossly overreacted after being informed that
an old bandage was found on the ball of a resident‟s foot in a sock when the resident‟s
wound, which was on her ankle, was properly dressed and bandaged. Defendants also
rely on the fact that Plaintiff did not file a qualifying internal or external report of neglect
until after he was fired. The trial court summarily dismissed the TPPA claim stating
“leaving a bandage in a sock, where a patient‟s wound is in fact otherwise sufficiently
bandaged, is not illegal activity as defined by the statute. Leaving the bandage in the sock
is not „abuse and neglect‟ as defined in the statute.” The court dismissed the common law
whistleblower claim because Plaintiff did not show that Defendants engaged “in illegal
conduct or in any way . . . posed a threat to an important public policy of the State when
all that was done was to leave an old bandage in a patient‟s sock.” Plaintiff appeals the
summary dismissal of his claims under the TPPA and common law. 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
RICHARD H. DINKINS, J., joined. J. STEVEN STAFFORD, P.J., W.S., filed a dissenting
opinion.
Brian Christopher Winfrey, Nashville, Tennessee, for the appellant, Daniel Richmond.
Benjamin Henry Bodzy and Megan Michelle Sutton, Nashville, Tennessee, for the
appellees, Vanguard Healthcare Services, LLC and Glen Oaks Health and Rehabilitation.
OPINION
Daniel Richmond (“Plaintiff”) was hired in 2012 by Vanguard Healthcare
Services, LLC, as the Nursing Home Administrator of Glen Oaks Health and
Rehabilitation in Shelbyville, Tennessee, an assisted living, rehabilitation, and nursing
home facility owned and operated by Vanguard Health Services. Plaintiff‟s primary
responsibility was to oversee the day-to-day operations of Glen Oaks.
Willar Grace Harris, an elderly resident at Glen Oaks, had a persistent wound on
her ankle that required daily monitoring at the facility as well as weekly visits to the
Wound Care Clinic for treatment. Richard Sanders, the son of Ms. Harris, was with his
mother when she went to the Wound Care Clinic on September 4, 2013, for a routine,
weekly examination of the wound on her ankle. When an attendant removed her sock to
examine the wound on the ankle there was an old bandage on the bottom of Ms. Harris‟
foot. The bandage, which was dated “8/11/2013,” was given to Mr. Sanders.
When his mother‟s visit at the Wound Care Clinic was completed, Mr. Sanders
travelled directly to Glen Oaks to register a formal complaint about his mother‟s care.
When he arrived at Glen Oaks, Mr. Sanders, who was visibly upset and angry, confronted
Mary Beth Bayman, the Director of Nursing who was primarily responsible for Ms.
Harris‟ care. Ms. Bayman then escorted Mr. Sanders to Plaintiff‟s office where the three
of them discussed Mr. Sanders‟ concerns. Ms. Bayman explained that it was not
necessary to fully remove the sock to examine, dress and bandage the wound on Ms.
Harris‟ ankle; instead, she would pull the sock down far enough to determine that the
ankle was appropriately dressed and bandaged. Plaintiff informed Mr. Sanders that an
internal investigation would be initiated immediately. Plaintiff prepared a written report
of the incident, submitted it to his supervisors, and gave Mr. Sanders a copy of the
internal report.1
Two days later, on September 6, 2013, Plaintiff‟s employment was terminated.
Plaintiff states that he was terminated in retaliation for reporting the incident concerning
Ms. Harris. Vanguard Healthcare Services, LLC, and Glen Oaks Health and
Rehabilitation (“Defendants”) insist his employment was terminated for several reasons,
including his overreaction to and improper handling of the incident concerning Ms.
Harris and Plaintiff‟s history of overreacting to routine matters, which resulted in clashes
1
The internal report was given to Mr. Sanders and submitted to Plaintiff‟s supervisors on the
same day as Ms. Harris‟ visit to the Wound Care Clinic, September 4, 2013.
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with staff at Glen Oaks and with Plaintiff‟s supervisor, Mark Miller. Plaintiff counters
stating he had never been issued a formal written reprimand prior to his termination.
After his termination, Plaintiff submitted a written report to DHS concerning the
alleged neglect of Ms. Harris.2
On October 13, 2013, Plaintiff commenced this action asserting a claim for
retaliatory discharge in violation of the Tennessee Adult Protective Act (“TAPA”), Tenn.
Code Ann. § 71-6-105; the Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann.
§ 56-1-304; and Tennessee common law. Defendants filed an answer denying any
liability. Thereafter, discovery was taken, including the deposition of Plaintiff and
representatives of Defendants.
Defendants subsequently moved for summary judgment seeking the dismissal of
all claims. Defendants asserted that Plaintiff‟s retaliation claim for violation of the TAPA
should be summarily dismissed because he failed to report the alleged neglect in the
manner required by the statute.3 As for the TPPA and common law claims, Defendants
asserted that they fail because (1) Defendants were not engaged in illegal activity; and (2)
Plaintiff did not timely report the alleged neglect to anyone other than Defendants.
Further, Defendants also asserted that the TPPA claim fails because Plaintiff is unable to
establish that his refusal to remain silent about illegal activities was the sole cause of his
termination.
Pursuant to a Memorandum Opinion entered on November 26, 2014, the trial court
summarily dismissed all claims; it reads in pertinent part:
The case was filed as a claim under the [TPPA], the [TAPA], and as a
unlawful termination claim under Tennessee common law arising from the
termination of Plaintiff Daniel Richmond (“Employee”) from his
employment as Chief Licensed Nursing Home Administrator at Defendant
Glen Oaks Health and Rehabilitation (“Glen Oaks”), owned by Defendant
2
No report was submitted to the Tennessee Department of Human Service (“DHS”) or anyone
outside of Plaintiff‟s chain of command until after Plaintiff was terminated.
3
The TAPA provides that “[a]ny person, including, but not limited to, a physician, nurse, social
worker, department personnel, coroner, medical examiner, alternate care facility employee, or caretaker,
having reasonable cause to suspect that an adult has suffered abuse, neglect, or exploitation, shall report
[such abuse].” Tenn. Code Ann. § 71-6-103(b)(1). This reporting obligation can be satisfied by: (1)
reporting the abuse or neglect directly to DHS; or (2) by internally reporting pursuant to specific company
procedures that have been approved by DHS. Wynn v. Five Star Quality Care Trust, No. 3:13-cv-01338,
2014 WL 5107057, at *3 (M.D. Tenn., Oct. 10, 2014). TAPA provides a civil cause of action for any
person who suffers a detrimental change in their employment status by reason of making a qualifying
report. Tenn. Code Ann. § 71-6-105.
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Vanguard Healthcare. For the reasons set out below, summary judgment
will be granted.
On September 4, 2013, the son of a patient at Glen Oaks complained that
the Director of Nursing at Glen Oaks‟ facility in Shelbyville, Mary Beth
Bayman, had not properly cared for a patient. The specific allegation is that
a bandage was found in one of the patient‟s socks beneath her foot after the
bandage had previously been on the ankle of the patient. The injury for
which the bandage had originally been placed on the patient was, at the
time of discovery of the old bandage, covered by a fresh bandage. There is
no sworn expert evidence before this trial court that the presence of the old
bandage was in any way detrimental to the health and safety of the patient.
The employment of the Employee was terminated two days later, on
September 6, 2013, after the Employee had reported internally the alleged
poor care provided by Ms. Bayman, that is, to individuals on the
Defendants‟ payroll, initiating an investigation of the incident. The
Complaint alleges that the Defendants “expressed their disdain” and
“expressed their hostility” toward and “ultimately terminated” the Plaintiff
Employee because he “refused to keep the incident quiet or diffuse the
allegations”. . . . There is no mention in the Complaint of any allegation
that the Employee was terminated because he refused to participate in any
illegal activity. It is uncontroverted that the Plaintiff Employee did not
report the alleged abuse to anyone outside of the Defendants until after his
termination. It is also undisputed that the Defendants have a policy for
reporting patient abuse, but it is undisputed that the policy had never been
submitted to the Tennessee Department of Human Services for approval.
...
As to the TAPA claim, the Employee would have had to report the abuse
either to the Department of Human Services, or if, and only if, DHS had
approved Glen Oaks‟ internal reporting scheme, the Employee would have
had to report the alleged abuse following the internal procedures in order to
be entitled to protection. In this case it is undisputed that the internal Glen
Oaks procedure had not been approved by DHS before being fired. The
Defendants are entitled to summary judgment as to the TAPA claim.
In order to establish a claim under TPPA, the Employee would have to
prove, among other things, that he had refused to participate in or remain
silent about illegal activities and that the refusal to participate in or remain
silent about illegal activities was the sole cause of his termination. First,
there is not in the Complaint any allegation of a refusal to participate in
illegal activity, and there is no evidence in the sworn record that the
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Employee did so. Secondly, leaving a bandage in a sock, where a patient‟s
wound is in fact otherwise sufficiently bandaged, is not illegal activity as
defined by the statute. Leaving the bandage in the sock is not “abuse and
neglect” as defined in the statute.
...
As to the common law whistleblower claim, the Employee must prove that
a substantial factor in the discharge was his speaking out about illegal
activities if an important public policy interest of the State has been
embodied in the law. As explained above, Glen Oaks is not shown to have
been engaged in illegal conduct or in any way to have posed a threat to an
important public policy of the State when all that was done was to leave an
old bandage in a patient‟s sock. No reasonable fact finder could find that
Glen Oaks was engaged in illegal conduct.
Summary judgment will be granted in favor of the Defendants.
On appeal, Plaintiff contends the trial court erred by summarily dismissing his
TPPA and common law claims based on its finding that Defendant was not shown to
have engaged in illegal activity.4 Plaintiff contends it was error to dismiss these claims
because he had reasonable cause to believe that the reported incident constituted illegal
activity. Further, Plaintiff insists he had a mandatory duty to report all “suspected” cases
of neglect; therefore, his actions are protected regardless of whether the reported incident
is proven to meet the statutory definition of neglect.5
ANALYSIS
The employment-at-will doctrine is “a bedrock of Tennessee common law” and is
a fundamental principle controlling the employer-employee relationship. Williams v. City
of Burns, 465 S.W.3d 96, 108 (Tenn. 2015) (quoting Franklin v. Swift Tranp. Co., 210
S.W.3d 521, 527 (Tenn. Ct. App. 2006)). Under the doctrine, employment for an
4
Plaintiff does not challenge the summary dismissal of his TAPA claim.
5
Plaintiff articulated two additional issues; we believe the issue identified above incorporates
Plaintiff‟s challenges to the trial judge‟s rulings. The other two issues read:
1. Under the TPPA and common law, must an employee conclusively prove that the
reported incident was an actual violation of the law in order to satisfy the “illegal
activity” element of a retaliatory discharge cause of action?
2. Under the TPPA and common law, is an employee terminated for making a well-
founded good faith report of neglect protected from retaliatory discharge if a trial
court later finds that the reported incident was not proven by the employee to meet
the statutory definition of neglect at summary judgment?
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indefinite period of time may be terminated by either the employer or the employee at
any time and for any reason. Id. This doctrine, however, is not absolute, and some
restrictions have been imposed on the right of an employer to discharge an employee. Id.
At issue in this appeal are Plaintiff‟s claims under two of the recognized exceptions to the
employment at-will doctrine: (1) the Tennessee Public Protection Act; and (2) the
Tennessee common law. See Williams v. Greater Chattanooga Public Television Corp.,
349 S.W.3d 501, 513 (Tenn. Ct. App. 2011). We shall first discuss the TPPA claim.
I. THE TENNESSEE PUBLIC PROTECTION ACT
The TPPA creates a cause of action for employees that are “discharged or
terminated solely for refusing to participate in, or for refusing to remain silent about,
illegal activities.” Tenn. Code Ann. § 50-1-304(b)-(c). In cases of retaliatory discharge
under the TPPA, courts apply a burden-shifting analysis similar to the one used in federal
courts under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).6 See Tenn. Code
Ann. § 50-1-304(f); Williams, 465 S.W.3d at 111. Tennessee‟s burden-shifting
framework operates as follows:
In any civil cause of action for retaliatory discharge brought pursuant to this
section, or in any civil cause of action alleging retaliation for refusing to
participate in or remain silent about illegal activities, the plaintiff shall have
the burden of establishing 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 plaintiff at all times retains the burden of persuading the
trier of fact that the plaintiff has been the victim of unlawful retaliation.
Tenn. Code Ann. § 50-1-304(f). In cases accruing on or after June 10, 2011, this burden-
shifting framework applies at all stages of litigation, including motions for summary
judgment. See Tenn. Code Ann. § 50-1-304(f).7
6
The Tennessee Supreme Court has noted that the analytical framework set forth in the amended
TPPA is “virtually indistinguishable” from the McDonnell Douglas approach. Williams, 465 S.W.3d at
113 n.15.
7
In Kinsler v. Berkline, LLC, 320 S.W.3d 18, 26 (Tenn. 2011) and Gossett v. Tractor Supply Co.,
320 S.W.3d 777 (Tenn. 2010), the Tennessee Supreme Court held that the summary judgment analysis is
(continued…)
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At the first stage of the McDonnell Douglas analysis, a plaintiff employee bears
the burden of presenting evidence to establish a prima facie case of retaliatory discharge.
Williams, 465 S.W.3d at 113. A plaintiff who asserts a claim under the TPPA must
establish: (1) that he was an employee of the defendant; (2) that he refused to participate
in or remain silent about “illegal activities” as defined by the statute; (3) he was
terminated; and (4) an exclusive causal relationship existed between his refusal to
participate in or remain silent about illegal activities and his termination.8 Franklin, 210
S.W.3d at 528.
The TPPA defines “illegal activities” as “activities that are in violation of the
criminal or civil code of this state or the United States or any regulation intended to
protect health, safety, or welfare.” Tenn. Code Ann. § 50-1-304(a)(3). The alleged illegal
activity at issue here was neglect in the care of Ms. Harris in violation of the Tennessee
Adult Protection Act. The TAPA defines “abuse and neglect” in the context of elder care
as “the infliction of physical pain, injury, or mental anguish, or the deprivation of
services by a caretaker that are necessary to maintain the health and welfare of an adult or
obtain the services that are necessary to maintain that person‟s health or welfare.” Tenn.
Code Ann. § 71-6-102(1)(A).
In their motion for summary judgment, Defendants argued that Plaintiff failed to
establish a prima facie case under the TPPA because he did not and could not establish
that he refused to participate in or remain silent about “illegal activities” as defined by the
statute. In support of their motion, Defendants‟ relied on Plaintiff‟s deposition testimony
wherein Plaintiff acknowledged that the “neglect” at issue concerned an outdated
bandage that was found on the ball of Ms. Harris‟ foot, although the wound was on her
ankle. Defendants argued that because “the bandage was not found touching Ms. Harris‟
to be applied in retaliatory discharge actions in the same way as in other cases, and rejected the federal
McDonnell Douglas framework of allocations of burdens and order of presentation of proof of each party.
Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 26 (Tenn. 2011). However, an amendment to Tenn.
Code Ann. § 50-1-304, applicable to causes of action accruing on or after June 10, 2011, functionally
overrules the retaliatory discharge summary judgment analysis of Kinsler and Gossett. Williams, 465
S.W.3d at 111 n.15 (“In 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.”). The cause of action in the instant case accrued in 2013; thus, the
burden-shifting framework under the statute applies to Defendants‟ motion for summary judgment. See
Andrée Sophia Blumstein, Bye Bye Hannan? What A Difference Two Little Words, at Trial, Can Make in
the Formulation of Tennessee’s Summary Judgment Standard, TENN. B.J., August 2011, at 17 (noting
that after the amendment, in cases of retaliatory discharge courts will have to apply the federal burden-
shifting standard of McDonnell Douglas at all stages of the case, including summary judgment).
8
To establish the requisite causal relationship under the TPPA, a plaintiff must show that “his or
her refusal to remain silent was the sole reason for the discharge.” Haynes v. Forman Stables, Inc., 483
S.W.3d 34, 37 (Tenn. 2015).
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wound and there is no evidence that the bandage caused harm to Ms. Harris,” the
activities leading to Plaintiff‟s claim “in no way [rise] to the level of „abuse and neglect‟
under [Tenn. Code Ann. § 71-6-102].” Generally stated, Defendants argued that this case
arises from Plaintiff‟s “overreaction” to their being a small bandage on the bottom of a
resident‟s foot, when the resident‟s wound, which was on her ankle, was properly dressed
and bandaged.
Although he did not dispute the fact that the bandage was found on Ms. Harris‟
foot while her injury was located on her ankle, Plaintiff argued that the outdated bandage
was evidence that the caretakers failed to sufficiently monitor and care for Ms. Harris and
that this deprivation satisfies the statutory definition of neglect.
After reviewing the undisputed material facts, the trial court held that “leaving a
bandage in a sock, where a patient‟s wound is in fact otherwise sufficiently bandaged is
not illegal activity. . . [and] is not „abuse and neglect‟ as defined in the statute.” Based on
this holding, the trial court summarily dismissed Plaintiff‟s TPPA claim.
On appeal, Plaintiff insists the trial court‟s holding was error because he is not
required “to conclusively prove that the reported incident was illegal”; instead, he insists
that “reasonable cause” for suspecting illegal activity is the standard. Further Plaintiff
insists that summary judgment was not appropriate because “a disputed issue of fact
remains about whether the reported incident of neglect meets the statutory definition of
neglect,” and “the question of whether the caretaker‟s misfeasance meets the statutory
definition of neglect should have been left to the jury.”
As Plaintiff correctly asserts, whether the alleged neglect of Ms. Harris constituted
illegal activity as a matter of law is not dispositive of whether Plaintiff can establish a
prima facie case of retaliatory discharge under the TPPA. As our Supreme Court has
explained, “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) (emphasis added).
We have discussed the “reasonable cause” requirement in several cases. In
Sanders v. Henry County, an employee was terminated after he reported that his
supervisor was “using the computer at his office to view personal, non-work-related
emails containing what [the employee] considered to be inappropriate or pornographic
pictures.” Sanders v. Henry County, No. W2008-01832-COA-R3-CV, 2009 WL
1065916, at *8 (Tenn. Ct. App. Apr. 21, 2009). When he sued his employer for
retaliatory discharge, the trial court granted the employer‟s motion for summary
judgment, finding that the supervisor‟s actions were not “illegal activities” within the
meaning of the TPPA; thus, the employee was unable to establish that he reported or
remained silent about an “illegal activity.” Id. at *4. On appeal, the employee argued that
regardless of the legality or illegality of his supervisor‟s actions, he could maintain a
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claim under the TPPA so long as he reasonably believed that his supervisor‟s actions
were illegal. In addressing this argument, we stated:
Plaintiff does not claim that he was aware of any law, regulation, or rule
which he believed [his supervisor] was violating. Plaintiff simply argues
that “all that is required” is that he had a reasonable belief that the actions
were “illegal.” Plaintiff claims that he reported “what [he] perceived as
illegal activities in the work place.” He basically claims that he thought [his
supervisor‟s] actions were wrong, and his brief attempts to support his
assertion with a discussion of taxpayers‟ rights, cases dealing with
pornography and obscenity, and a reference to [the city mayor‟s] statement
that it is not “good practice” to view non-work-related material while
working. However, we find that the Court‟s statement in Mason does not
extend to the lengths urged by Plaintiff. Plaintiff did not establish the
essential elements of his claim for statutory retaliatory discharge simply by
claiming that he thought [his supervisor‟s] actions were wrong.
As stated above, an employee has to meet a “formidable burden” in
establishing this element of the whistleblower statute. Hill, 2001 WL
694479, at *5; Darnall, 1999 WL 346225, at *5. From our review of the
cases applying the statute, an employee cannot meet this burden simply by
claiming that he believed his employer‟s actions were “wrong” or against
“public policy.”
Sanders, 2009 WL 1065916, at *8-9. We then provided several examples to further
illustrate what is required to establish “reasonable cause”:
In Stein, 945 S.W.2d at 716, the Supreme Court considered an employee‟s
claim that she was wrongfully discharged “in violation of public policy.”. . .
The Court held that in order for the plaintiff-employee to prevail, he or she
must point to a “clear mandate of public policy, evidenced by an
unambiguous constitutional, statutory, or regulatory provision[.]” Id.
In Gager v. River Park Hospital, No. M2007-02470-COA-R3-CV, 2009
WL 112544, at *1 (Tenn. Ct. App. Jan.14, 2009), a nurse practitioner sued
her former employer, a hospital, for common law and statutory retaliatory
discharge, claiming she was terminated as a result of her “refusal to remain
silent” about an “illegal and ill-advised policy” implemented by the hospital
regarding when nurses could call physicians. Id. at *1. Specifically, the
nurse practitioner alleged that the hospital policy “served not only to
endanger the health of patients but also [was] in contravention of Tennessee
statutory, common and regulatory law and Tennessee‟s explicit public
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policy.” Id. at *4. The trial court granted summary judgment to the hospital,
and the Court of Appeals affirmed, explaining:
Ms. Gager has failed to identify the law and policy that she
contends was contravened . . . or what activities of River Park
were illegal; the quoted provisions from her affidavit reveal
only a policy implemented by River Park with which Ms
Gager disagreed. . . . [Allegations of illegal activity] must be
substantiated to some degree. . . . Without more than mere
assertions by Plaintiff, the claim must fail . . . .
In Collins v. AmSouth Bank, 241 S.W.3d at 881-82, a bank employee was
fired after a heated argument with her supervisor about placing money in a
night deposit drop box. The bank employee filed a suit for retaliatory
discharge against the bank and claimed that she was unsure of whether her
supervisor violated federal banking regulations and bank policy by
instructing her to put the cash in the night deposit drop box. Id. at 882. The
employee cited a federal statute and regulation as support for her belief that
the supervisor‟s request was illegal. Id. at 885-86. However, on appeal, we
found that the statute and regulation provided “no legal basis” for the
employee‟s assertion that the supervisor‟s actions were illegal, and we
affirmed summary judgment in favor of the bank. Id. at 886 n.4.
...
In several other statutory retaliatory discharge cases, we have affirmed
summary judgment in favor of employers where employees were
terminated after making complaints against their employers for activities
that did not rise to the level of “illegal activities” under the statute. See,
e.g., Bridgestone/Firestone, Inc. v. Orr, No. M2006-2638-COA-R3-CV,
2008 WL 80200, at *4 (Tenn. Ct. App. W.S. Jan. 7, 2008) perm. app.
denied (Tenn. Jun. 23, 2008) (finding that the employee‟s refusal to remain
silent about tire failures did not involve illegal activities); Forrest v. City of
Ridgetop, No. M2002-01176-COA-R3-CV, 2003 WL 21954195, at *6
(Tenn. Ct. App. Aug. 15, 2003) (stating that a police officer‟s complaints
regarding his employer‟s practices such as “ticket fixing” did not constitute
illegal activities within the meaning of the statute); Robins v. Flagship
Airlines, Inc., 956 S.W.2d 4, 6-7 (Tenn. Ct. App. 1997) (concluding that an
airline employee‟s report to the company president regarding perceived
problems with the maintenance department did “not even approach the
subject of statutory or regulatory violations”).
Sanders, 2009 WL 1065916, at *9-10.
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Here, Plaintiff insists that he reasonably believed that Ms. Harris was neglected.
However, as described above, to satisfy the standard set forth in Mason, Plaintiff must
“identify the law and policy that [he] contends was contravened” and must be able to
substantiate these allegations to some degree. See Sanders, 2009 WL 1065916, at *10
(quoting River Park, 2009 WL 112544, at *8).
To determine whether Plaintiff has met this burden, or whether a genuine issue
exists which would preclude summary judgment, we must review the material facts. In
this case, Ms. Harris, an elderly resident at Glen Oaks, had a persistent wound on her
ankle that required daily monitoring at the facility as well as weekly treatment at the
Wound Care Clinic. During a routine examination of the wound on her ankle on
September 4, 2013, when an attendant at the Wound Care Clinic removed Ms. Harris‟
sock to examine the wound on the ankle, there was a bandage on the bottom of her foot
that was dated “8/11/2013.” At the conclusion of this routine visit, the old bandage was
given to Richard Sanders, Ms. Harris‟ son, who drove his mother back to Glen Oaks.
Upon arriving, Ms. Sanders, who was angry and visibly upset, met with Plaintiff to
register a complaint concerning the old bandage being found on his mother‟s foot.
Although finding an old bandage on the bottom of Ms. Harris‟s foot was
understandably disconcerting, we do not believe that such a discovery could reasonably
lead to the conclusion that Ms. Harris was subject to elder neglect. We find it significant
that the wound on her ankle was dressed appropriately on September 4 and the parties‟
respective statements of undisputed facts make no reference to any maladies or
infirmities attributed to the old bandage being on the bottom of the foot of Ms. Harris. It
is also significant that there is nothing in the statements of undisputed facts to indicate
that the old bandage, which was dated “8/11/2013,” or the same sock had been on the
foot of Ms. Harris for the three weeks that had transpired since August 11.9
9
Because the wound on the ankle was properly bandaged when Ms. Harris went to the Wound
Care Clinic for her weekly visit on September 4, and all bandages on her ankle would have been removed
and replaced on each of her weekly visits since August 11, the logical and reasonable inference to make is
that the “8/11/15” bandage came off of her ankle during the following week but remained in the sock
when the sock was removed. This is a reasonable inference because there is no evidence that Ms. Harris
was not bathed properly between August 11 and September 4, which would have required removing the
sock. In any event, a fresh bandage would have been placed on Ms. Harris‟ ankle during her next weekly
visit to the clinic, which was on or about August 18, and on each weekly visit thereafter until she returned
on September 4. Furthermore, we note that Plaintiff initially advanced the theory that the bandage was
simply washed in Ms. Harris‟ sock and inadvertently placed back on her foot. Although these inferences
are logical, the court is not permitted to draw an inference against the nonmoving party at the summary
judgment stage. See Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (We must view all of
the evidence in the light most favorable to the nonmoving party and resolve all factual inferences in the
nonmoving party‟s favor).
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Further, as was the case in Sanders, Plaintiff has failed to clearly identify the law
and policy that he alleges was contravened and has not substantiated his allegations to a
sufficient degree. See Sanders, 2009 WL 1065916, at *8-10. Like the employee in
Collins, who filed suit for retaliatory discharge claiming that she was unsure of whether
her supervisor violated federal bank regulations, Plaintiff acknowledges that he began his
internal investigation unsure of whether there had been a violation of the Tennessee
Adult Protection Act. Therefore, no reasonable jury could conclude that Plaintiff had
reasonable cause to believe that these acts or omissions constituted illegal activities.
As described above, in an action for retaliatory discharge under the TPPA for
refusing to participate in or remain silent about illegal activities, the plaintiff shall have
the burden of establishing a prima facie case of retaliatory discharge. Tenn. Code Ann. §
50-1-304(f). If the plaintiff satisfies this burden, the burden shall then be on the defendant
to produce evidence that one or more legitimate, nondiscriminatory reasons existed for
the plaintiff‟s discharge. Id.
In this case, we have affirmed the trial court‟s holding that “leaving a bandage in a
sock, where a patient‟s wound is in fact otherwise sufficiently bandaged, is not illegal
activity as defined by the statute. Leaving the bandage in the sock is not „abuse and
neglect‟ as defined in the statute.” We have also concluded that Plaintiff did not have
reasonable cause to believe that Defendants‟ acts or omissions constituted illegal
activities. Therefore, Plaintiff cannot establish the second essential factor in order to
establish a prima facie case for retaliatory discharge under the TPPA. Because Plaintiff
cannot establish the second essential factor of a TPPA retaliatory discharge claim, that he
refused to participate in or remain silent about illegal activity, he failed to establish a
prima facie case; thus, burden of persuasion never shifted and our inquiry concerning
Plaintiff‟s TPPA claim ends here. Accordingly, summary dismissal of Plaintiff‟s TPPA
claim was proper.10
II. THE COMMON LAW CLAIM
Plaintiff also asserted a claim for relief under the Tennessee common law for
retaliatory discharge. In Chism v. Mid-South Milling Co., Inc., 762 S.W.2d 552 (Tenn.
1988), the Tennessee Supreme Court adopted a public policy exception to the
employment-at-will doctrine “afford[ing] protection under the common law to employees
10
Defendants asserted two additional grounds in their motion for summary judgment that the trial
court did not address in its ruling. On appeal, Defendants state that we may affirm the dismissal of the
TPPA claim on these grounds as well as the trial court‟s finding that the acts or omissions did not
constitute illegal activities. Because we have affirmed the summary dismissal of the TPPA grounds for
reasons stated in this opinion, it is not necessary for us to consider the additional grounds that were not
considered by the trial court.
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who refuse to participate in illegal activities or remain silent about them.” Williams, 465
S.W.3d at 109 (citing Chism, 762 S.W.2d at 555-57).11
The essential elements of a common law retaliatory discharge claim are as
follows: (1) that an employment-at-will relationship existed; (2) that he was discharged;
(3) that the reason for his discharge was that he attempted to exercise a statutory or
constitutional right, or for any other reason which violates a clear public policy evidenced
by an unambiguous constitutional, statutory, or regulatory provision; and (4) that a
substantial factor in the employer‟s decision to discharge him was his exercise of
protected rights or his compliance with clear public policy. Collins v. AmSouth Bank, 241
S.W.3d 879, 884 (Tenn. Ct. App. 2007).
These elements are similar to the requirements for a TPPA claim which, as noted
earlier, are: (1) that the plaintiff was an employee of the defendant; (2) that he refused to
participate in or remain silent about “illegal activities” as defined by the statute; (3) he
was terminated; and (4) an exclusive causal relationship existed between his refusal to
participate in or remain silent about illegal activities and his termination. Franklin, 210
S.W.3d at 528.
There are two important differences in the two claims, however, which may or
may not be significant depending on the facts at issue. Under the TPPA, the plaintiff must
establish that he refused to participate in or remain silent about “illegal activities” as
defined by the statute common law, see Tenn. Code Ann. § 50-1-304(b), while under the
common law the plaintiff must establish that the reason for his discharge was that he
attempted to exercise a statutory or constitutional right, or for any other reason which
violates a clear public policy evidenced by an unambiguous constitutional, statutory, or
regulatory provision. See Collins, 241 S.W.3d at 884. The other difference between the
common law and statutory retaliatory discharge claims is whether the employee‟s refusal
was the sole reason or merely a substantial factor in his or her discharge. “[T]o benefit
from statutory protection, an employee must demonstrate that his or her refusal was the
sole reason for his or her discharge.” Collins, 241 S.W.3d at 844; see also Haynes v.
11
Two years later, the General Assembly enacted the TPPA which “essentially codified the
common-law cause of action for retaliatory discharge articulated in Chism.” Williams, 465 S.W.3d at 109-
10. However,
“[e]ffective July 1, 2014, the TPPA was amended to specifically „abrogate[ ] and
supersede[ ] the common law with respect to any claim that could have been brought
under this section.‟ Tenn. Code Ann. § 50-1-304(g) (2014). Accordingly, under the
statute as amended in 2014, in cases in which the plaintiff alleges retaliatory discharge
for refusing to participate in illegal activities or for refusing to remain silent about illegal
activities, the TPPA is the exclusive basis for relief.”
Williams, 465 S.W.3d at 109 n.11. This case accrued prior to July 1, 2014; thus the common law
retaliatory discharge claim is still viable.
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Forman Stables, Inc., 483 S.W.3d 34, 37 (Tenn. 2015). On the other hand, a plaintiff
asserting a common law retaliatory discharge claim need only show that the protected
action was a substantial factor in the employer‟s decision. Williams, 465 S.W.3d at 111;
see also Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 28 (Tenn. 2011) (“[T]he
legislature has chosen to enact a stringent standard . . . for recovery under a retaliatory
discharge claim pursuant to the [TPPA].”).
Accordingly, we now consider whether Plaintiff has established, or for purposes of
summary judgment created a dispute of fact, that a substantial reason for his discharge
was that he attempted to exercise a statutory or constitutional right, or for any other
reason which violates a clear public policy evidenced by an unambiguous constitutional,
statutory, or regulatory provision, as distinguished from whether he reasonably believed
that the acts or omissions he reported were “illegal activities.”
Without question, the abuse or neglect of an elder adult violates the public policy
of Tennessee. This public policy is embodied by the Tennessee Adult Protection Act. See
Tenn. Code Ann. § 71-6-101(b)(1) (“The purpose of this part is to protect adults coming
within this part from abuse, neglect, or exploitation by requiring reporting of suspected
cases by any person having cause to believe that such cases exist.”). However, we have
already concluded that the acts or omissions reported by Plaintiff could not reasonably be
believed to constitute abuse or neglect under TAPA. See Tenn. Code Ann. § 71-6-102
(defining “abuse and neglect” in the context of elder care as “the infliction of physical
pain, injury, or mental anguish, or the deprivation of services by a caretaker that are
necessary to maintain the health and welfare of an adult or obtain the services that are
necessary to maintain that person‟s health or welfare.”). Thus, we similarly conclude that
the acts reported by Plaintiff could not reasonably be believed to constitute a violation of
Tennessee public policy. Accordingly, the trial court correctly held that “[Defendant] is
not shown to have been engaged in illegal conduct or in any way to have posed a threat to
an important public policy of the State when all that was done was to leave an old
bandage in a patient‟s sock.”
The foregoing notwithstanding, Plaintiff insists that he is entitled to the protection
afforded under the common law because he believed he was under a mandatory statutory
duty to report the incident. We respectfully disagree with this assertion because a
condition precedent to the duty to report is that one must have reasonable cause to
suspect that an adult has suffered abuse, neglect, or exploitation.12 See Tenn. Code Ann.
§ 71-6-103(b)(1). The statute does not require the reporting of an act or omission that
12
The TAPA states, in pertinent part: “Any person, including, but not limited to, a physician,
nurse, social worker, department personnel, coroner, medical examiner, alternate care facility employee,
or caretaker, having reasonable cause to suspect that an adult has suffered abuse, neglect, or exploitation,
shall report or cause reports to be made in accordance with this part.” Tenn. Code Ann. § 71-6-103(b)(1)
(emphasis added).
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does not violate a clear public policy or statutory or regulatory provision. Therefore,
because no reasonable person could believe that these acts or omissions violate a public
policy, the reporting of these acts does not afford Plaintiff the remedies available under
Tenn. Code Ann. § 71-6-103 or the common law. Accordingly, summary dismissal of
Plaintiff‟s common law claim was appropriate.
IN CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellant, Daniel Richmond.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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