retaliatory discharge claim in Tennessee

2015See Guy, 79 S.W.3d at 537 ; Haynes, 2015 WL 1408917, at *2 . “[T]he legislature has chosen to enact a stringent standard and set the bar high for recovery under a retaliatory discharge claim pursuant to the [TPPA].” Sykes, 343 S.W.3d at 28 ; see Darnall v. A+ Homecare, Inc., No. 01-A-01-9807-CV-0034, 1999 WL 346225 , at *8 (Tenn. Ct. App. June 2, 1999) (Koch, J., concurring) (“The General Assembly’s choice of the term ‘solely’ means that an employee can prevail with a Tenn. Code Ann. § 50-1-304 claim only if he or she can prove that his or her refusal to participate in or to remain silent abou

2015See Guy, 79 S.W.3d at 537 ; Haynes, 463 S.W.3d at 37 . “[T]he legislature has chosen to enact a stringent standard and set the bar high for recovery under a retaliatory discharge claim pursuant to the [TPPA].” Sykes, 343 S.W.3d at 28 ; see Darnall v. A + Homecare, Inc., No. 01-A-01-9807-CV-0034, 1999 WL 346225 , at *8 (Tenn. Ct.App.

2021Id. (citing Williams v. City of Burns, 465 S.W.3d 96, 111 (Tenn. 2015)).

2020To establish a retaliatory discharge claim, a plaintiff must demonstrate “[1] that he engaged in conduct protected by the TPPA, [2] that the protected conduct was known to the defendant, [3] that the defendant thereafter discharged him, and [4] that there was the requisite causal connection between the protected conduct and the discharge.” Williams v. City of Burns, 465 S.W.3d 96, 113 (Tenn. 2015).

2003Newsom v. Textron Aerostructures, 924 S.W.2d 87, 96 (Tenn.App.1995).

2002Newsom v. Textron Aerostructures, 924 S.W.2d 87, 96 (Tenn. App. 1995).

2016Auth., 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].”).

2015See Guy, 79 S.W.3d at 537 ; Haynes, 463 S.W.3d at 37 . “[T]he legislature has chosen to enact a stringent standard and set the bar high for recovery under a retaliatory discharge claim pursuant to the [TPPA].” Sykes, 343 S.W.3d at 28 ; see Darnall v. A + Homecare, Inc., No. 01-A-01-9807-CV-0034, 1999 WL 346225 , at *8 (Tenn. Ct.App.

2002See, e.g., Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn.1993) (setting out the elements of a retaliatory discharge claim).

1994In Hodges and in Anderson v. Standard Register Co., 857 S.W.2d 555, 556 (Tenn.1993), the Court reaffirmed its statement in Chism v. Mid-South Milling Co., 762 S.W.2d 552, 556 (Tenn.1988), that the action will lie where the employer has violated a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision and the employer’s violation was a substantial factor in the employee’s discharge. *824 Although the Court in Anderson dismissed the employee’s retaliatory discharge claim because she failed to prove causation, the Court observed: The cause of action for

2021Id. (citing Williams v. City of Burns, 465 S.W.3d 96, 111 (Tenn. 2015)).

2009Collins v. AmSouth Bank, 241 S.W.3d 879, 884 (Tenn. Ct. App. 2007).

2025As we explained in Watson, the legislature is far better suited for that task. 789 S.W.2d at 540 (cautioning that public policy exceptions should be adopted “only in the most extraordinary circumstances” because public policy “is clearly a legislative function”); see also, e.g., Smith v. Gore, 728 S.W.2d 738, 747 (Tenn. 1987) (explaining that “questions of policy are for the determination of the legislature, and not for the courts,” lest courts act as “lawmaking bodies in usurpation of the powers of the legislature” (quoting Cavender v. Hewitt, 239 S.W. 767 , 768 (Tenn. 1922))).

2002In a case where the court was asked to create an additional public policy basis for a retaliatory discharge claim, the Tennessee Supreme Court stated, “we are of the opinion that only in the most extraordinary circumstances should the courts of this State impose their judgment in an area which, in the first instance, is clearly a legislative function.” Watson v. Cleveland Chair Co., 789 S.W.2d 538, 540 (Tenn. 1989).

2016See Sanders, 2009 WL 1065916 , at *8, 10 (citing Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997) (holding that employee was able to satisfy the ―illegal activity‖ element of a retaliatory discharge claim where she had reasonable cause to believe that employer had violated a specific law and acted in good faith when reporting);White v. Fort Sanders-Park W.

2014Mason v. Seaton, 942 S.W.2d 470, 475-76 (Tenn. 1997) (“It is axiomatic that an employer who is engaged in illegal activity does not want that activity reported . . . .

2015As courts have previously observed regarding the causation element of a retaliatory discharge claim, “direct evidence of [the employer’s] motivation is rarely within the plaintiff’s possession.” Newcomb v. Kohler Co., 222 S.W.3d 368, 391 (Tenn. Ct. App. 2006) (quoting Guy, 79 S.W.3d at 534 ).

2010As courts have previously observed regarding the causation element of a retaliatory discharge claim, “direct evidence of [the employer’s] motivation is rarely within the plaintiff’s possession.” Newcomb, 222 S.W.3d at 391 (Tenn. Ct. App. 2006) (quoting Guy, 79 S.W.3d at 534 ).

2002See, e.g., Williams v. Williamson County Bd. of Educ., 890 S.W.2d 788, 790 (Tenn.Ct.App.1994) (stating that sovereign immunity is not removed for a retaliatory discharge claim (citing Montgomery v. Mayor of Covington, 778 S.W.2d 444, 445 (Tenn.Ct.App.1988))).

2000Thus, the Trial Court, citing Williams v. Williamson County Board of Education, 890 S.W.2d 788, 790 (Tenn. Ct. App. 1994), correctly held that sovereign immunity is a complete defense for a retaliatory discharge claim by the Appellants.

2025Id.

1994In Hodges and in Anderson v. Standard Register Co., 857 S.W.2d 555, 556 (Tenn.1993), the Court reaffirmed its statement in Chism v. Mid-South Milling Co., 762 S.W.2d 552, 556 (Tenn.1988), that the action will lie where the employer has violated a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision and the employer’s violation was a substantial factor in the employee’s discharge. *824 Although the Court in Anderson dismissed the employee’s retaliatory discharge claim because she failed to prove causation, the Court observed: The cause of action for

2002See, e.g., Williams v. Williamson County Bd. of Educ., 890 S.W.2d 788, 790 (Tenn.Ct.App.1994) (stating that sovereign immunity is not removed for a retaliatory discharge claim (citing Montgomery v. Mayor of Covington, 778 S.W.2d 444, 445 (Tenn.Ct.App.1988))).

1994Montgomery v. City of Covington, 778 S.W.2d 444 (Tenn.App.1988).

2025As we explained in Watson, the legislature is far better suited for that task. 789 S.W.2d at 540 (cautioning that public policy exceptions should be adopted “only in the most extraordinary circumstances” because public policy “is clearly a legislative function”); see also, e.g., Smith v. Gore, 728 S.W.2d 738, 747 (Tenn. 1987) (explaining that “questions of policy are for the determination of the legislature, and not for the courts,” lest courts act as “lawmaking bodies in usurpation of the powers of the legislature” (quoting Cavender v. Hewitt, 239 S.W. 767 , 768 (Tenn. 1922))).

2017To establish a retaliatory discharge claim under the common law, Upshaw had the burden of proving the following four elements: (1) she was an at-will employee of Sunrise; (2) the defendant employer discharged or terminated Upshaw’s employment; (3) the reason for the discharge was that Upshaw 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) A substantial factor in Sunrise’s decision to discharge Upshaw was her exercise of protected rights

2014We recognize that physical inabilities or legal ineligibility could possibly serve as legitimate non-discriminatory reasons for termination, potentially rendering a retaliatory discharge claim unsuccessful; however, this is not the same as depriving a litigant of standing to bring the claim in the first place.7 See Jandreau v. Shaw's Supermarkets, Inc., 837 A.2d 142, 146 (Me. 2003) (noting that an employee’s physical inability to perform her job was indicative of whether the employer had a legitimate business purpose for the termination and did not affect her standing to bring a retaliatory di

2014We recognize that physical inabilities or legal ineligibility could possibly serve as legitimate non-discriminatory reasons for termination, potentially rendering a retaliatory discharge claim unsuccessful; however, this is not the same as depriving a litigant of standing to bring the claim in the first place.7 See Jandreau v. Shaw's Supermarkets, Inc., 837 A.2d 142, 146 (Me. 2003) (noting that an employee’s physical inability to perform her job was indicative of whether the employer had a legitimate business purpose for the termination and did not affect her standing to bring a retaliatory di

2014We note that in one recent case, Todd v. Shelby County, 407 S.W.3d 212, 221 (Tenn. Ct. App. 2012), this Court did apply the recent amendment to section 50-1-304(g) to a retaliatory discharge claim when the lawsuit was pending in the trial court when the amendment became effective on June 10, 2011, and the hearing on the summary judgment motion took place after that date.

2014We concluded that the amendment was of a procedural nature and explained that “[r]emedial or procedural statutes apply retrospectively not only to causes of action arising before such acts become law, but to all suits pending when the legislation takes effect, unless the legislature indicates a contrary intention or immediate application would produce an unjust result.” Id. (quotation omitted).

2014“It is not the role of the courts, trial or appellate, to research or construct a litigant's case or arguments for him or her, and where a party fails to develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is waived.” Sneed v. Bd. of Prof'l Responsibility of Sup. Ct., 301 S.W.3d 603, 615 (Tenn. 2010). -36- denied the protection of a retaliatory discharge claim, under Tennessee law, for reporting activity that one has a duty to report.20 This issue is without merit. 2.

2014We recognize that physical inabilities or legal ineligibility could possibly serve as legitimate non-discriminatory reasons for termination, potentially rendering a retaliatory discharge claim unsuccessful; however, this is not the same as depriving a litigant of standing to bring the claim in the first place.7 See Jandreau v. Shaw's Supermarkets, Inc., 837 A.2d 142, 146 (Me. 2003) (noting that an employee’s physical inability to perform her job was indicative of whether the employer had a legitimate business purpose for the termination and did not affect her standing to bring a retaliatory di

2014We recognize that physical inabilities or legal ineligibility could possibly serve as legitimate non-discriminatory reasons for termination, potentially rendering a retaliatory discharge claim unsuccessful; however, this is not the same as depriving a litigant of standing to bring the claim in the first place.7 See Jandreau v. Shaw's Supermarkets, Inc., 837 A.2d 142, 146 (Me. 2003) (noting that an employee’s physical inability to perform her job was indicative of whether the employer had a legitimate business purpose for the termination and did not affect her standing to bring a retaliatory di

2010Recently, the Tennessee Supreme Court addressed the issue of a retaliatory discharge claim at the summary judgment phase in Gossett v. Tractor Supply Co., No. M2007-02530- SC-R11-CV, 2010 WL 3633459, at *1 (Tenn. Sept. 20, 2010).

2007Harney v. Meadowbrook Nursing Center, 784 S.W.2d 921, 923 (Tenn. 1990) (quoting Whittaker v. Care- More, Inc., 621 S.W.2d 395, 397 (Tenn. Ct. App. 1981)).

2007Harney v. Meadowbrook Nursing Center, 784 S.W.2d 921, 923 (Tenn. 1990) (quoting Whittaker v. Care- More, Inc., 621 S.W.2d 395, 397 (Tenn. Ct. App. 1981)).

2007In response, Little argues that Tennessee Code Annotated § 39-11-612 reflects an important public policy of encouraging the rescue of a third party from imminent bodily harm, and that the purpose of a retaliatory discharge claim is to “encourage the employee to protect the public interest.” Crews, 78 S.W.3d at 860 (emphasis added).

2006Co., 958 S.W.2d 342, 344-45 (Tenn. Ct. App. 1997) (reversing a judgment on an employee’s retaliatory discharge claim because the employer’s activities were not illegal).