TBA Law Blog


Posted by: Edward Phillips & Brandon Morrow on Feb 1, 2016

Journal Issue Date: Feb 2016

Journal Name: February 2016 - Vol. 52, No. 2

In days of old, no police officer’s uniform would have been complete without the quintessential whistle that was utilized as a precursor of sorts to the modern-day siren. Nowadays, it appears that police officers are blowing another sort of whistle. In the last year, at least three whistleblower actions against city police departments made their way through the appellate court system — two to the Court of Appeals, the other one all the way to the Tennessee Supreme Court. In reviewing these cases, one principle stands out: Tennessee courts have struck the proper balance between preserving the long-standing employment-at-will doctrine and providing redress for those terminated in violation of public policy.

As a reminder, the Tennessee Public Protection Act (TPPA), also referred to as the Whistleblower Act, prevents employees from being terminated solely for refusing to engage in or remain silent about illegal activities.[1] The elements of a TPPA claim are as follows:

  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.[2]

Bige v. City of Etowah

In Bige v. City of Etowah,[3] the plaintiff, a former police officer with the City of Etowah, brought suit under the Tennessee Public Protection Act alleging that she had been terminated for refusing to write unwarranted tickets in violation of Tenn. Code Ann. § 39-16-516.[4] Section 39-16-516 is an “anti-quota” statute that prohibits local law enforcement agencies from requiring its officers to issue a certain number of traffic citations.

While careful not to run afoul of § 39-16-516, Ms. Bige was warned by the police chief prior to her termination that she was not writing enough tickets: “Now I’m not saying you have a quota, but we both know that you will see at least one violator in a 12-hour shift.”[5] Bige was ultimately terminated, about a month later, for “poor attitude, negative attitude and also poor work performance, as shown by her lack of activity and deficiency in patrolling.”[6] Bige filed suit under the TPPA.

The Circuit Court of McMinn County granted Etowah’s motion for summary judgment, and the Court of Appeals affirmed. The Court of Appeals held that Etowah was entitled to summary judgment because Bige could not establish that she “refused to participate in illegal activity.”[7] Importantly, the Court of Appeals recognized that Section 39-16-516 placed a limitation on police departments, not individual officers:

[Section 39-16-516] clearly provides a limitation only on “[a] political subdivision or any agency of [the] state.” It specifically renders unlawful any evaluation of an officer based on the issuance of a predetermined amount of tickets, or any direct order to an officer to issue a specific number of tickets. It does not criminalize the act of compliance with that unlawful requirement or order. As an individual officer, Plaintiff could not have violated this statute.[8]

For this reason, Bige could not establish the second element of her TPPA claim. The court also noted that Bige could not establish the fourth element of her TPPA claim because the undisputed proof showed that she was terminated for other, lawful reasons, namely “poor attitude and demeanor.”[9]

Brumely v. City of Cleveland

In Brumley v. City of Cleveland,[10] Duff Brumley, a former police officer with the City of Cleveland, brought a TPPA claim alleging that he was fired for reporting his superior, the chief of police, for the crimes of official misconduct and official oppression. The official misconduct and official oppression aspects of the case arise out of a citation Brumley received at the direction of the chief of police for making harassing phone calls. The problem with the citation, Brumley argued, was that the city did not have jurisdiction over the incident. The calls allegedly made by Brumley were made in Bradley County, not the City of Cleveland, so the city was without jurisdiction to issue the citation. Brumley claimed that the chief of police “was aware of the illegality of the citation due to the lack of jurisdiction.”[11] Brumley later reported what was in his view an “illegal” citation to the Tennessee Bureau of Investigation (TBI). His TPPA claim was based on the fact that the chief’s behavior toward him changed after he contacted the TBI, and he was eventually terminated for it.[12]

The City of Cleveland moved for summary judgment, arguing that Brumley could not establish the exclusive causal relationship between the protected activity and his termination or that the activity complained of was illegal. This motion was granted by the Circuit Court for Bradley County. The Court of Appeals reversed, holding that under these facts “there was material evidence from which the trier of fact could conclude that Brumley’s employment was terminated solely for his refusal to remain silent about Chief Snyder’s alleged illegal actions.”[13] While the Court of Appeals expressed no opinion as to whether Brumley was actually terminated solely for refusing to remain silent about illegal activities, it did conclude that the case was not appropriate for summary dismissal.[14]

Williams v. City of Burns

In Williams v. City of Burns,[15] Larry Williams was a police captain who issued traffic citations for speeding and reckless driving to the 16-year-old stepson of the chief of police. Later that evening the chief asked Williams to write “warning” on the citations, which violated the department’s policy. Williams initially refused to convert the stepson’s citation, but eventually relented and made the ticket a “warning.”

The next day, Williams complained to the mayor and decided to erase “warning” from the citations. The chief told Williams that by discussing the incident with the mayor, Williams had violated the department’s rule on the chain of command, and warned him if it happened again he would be terminated. Williams once again complained to the mayor. The mayor called the chief and told him to turn the traffic tickets in to the juvenile court as citations or he (the chief) would be terminated. A few days later the chief terminated Williams for insubordination, which consisted of violating the department’s chain of command rules and by undermining the chief’s authority with other police officers (for allegedly talking to them about the incident). Williams filed a lawsuit for retaliatory discharge pursuant under the TPPA.

The trial court ruled in favor of the city and found that Williams’ termination was not based solely on his refusal to participate in ticket fixing. The appellate court reversed, finding that the chief’s reason for terminating Williams had “no basis in fact and did not actually motivate” the termination, and it was instead a pretext for retaliation.

In an opinion authored by Justice Holly Kirby, the Supreme Court affirmed the appellate court’s decision. The central issue was whether Williams could prove that the proffered reason for his termination (undermining the chief’s authority) was pretext for retaliation — the court held that he had met that burden.

The court first found that the chief’s testimony that he fired Williams because he violated the chain of command by speaking to the mayor about the ticket fixing was an admission by the city of retaliatory motive.[16] Indeed, the court found it was direct evidence of a retaliatory motive. Moreover, the court identified other circumstantial evidence of pretext: the relationship between the chief and Williams deteriorated after the incident, Williams was written up several times after the incident, and Williams was subjected to “heightened scrutiny.”[17]

The Takeaway

Bige reminds us that the illegal act at issue must be illegal for the complainant, and not merely his or her employer. Brumely points out that while the sole cause standard is a difficult one to meet for many plaintiffs, this does not always ensure summary dismissal for defendants. And finally, Williams provides perhaps the most valuable guidance of all: just because your step-father is the chief of police, doesn’t mean you can avoid a citation for speeding in Burns, Tennessee.

Notes

  1. Tenn. Code Ann. § 50-1-304.
  2. Sykes v. Chattanooga Hous. Auth., 343 S.W.2d 18, 26-27 (Tenn. 2012).
  3. No. 2014-00271-COA-R3-CV, 2014 Tenn. App. LEXIS 789 (Tenn. Ct. App. Dec. 1, 2014), perm. app. denied at 2015 Tenn. LEXIS 297 (Apr. 10, 2015).
  4. 2014 Tenn. App. LEXIS 789, at *22.
  5. Id. at *3.
  6. Id. at *5.
  7. Id. at *22.
  8. Id. at **16-17
  9. Id. at *31.
  10. No. E2014-02213-COA-R3-CV, 2015 Tenn. App. LEXIS 839 (Tenn. Ct. App. Oct. 15, 2015).
  11. Id. at *21.
  12. Id.
  13. Id. at *22.
  14. Id.
  15. 465 S.W.3d 96 (Tenn. May 4, 2015).
  16. Id. at 121.
  17. Id. at 122.

Ward Phillips EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

BRANDON L. MORROW is an associate with Kramer Rayson LLP in Knoxville where his primary areas of practice are labor and employment, and litigation. He earned a bachelor’s degree from the University of Tennessee and a law degree from UT College of Law in 2012.