DIANA MORRIS,                       )    Tennessee Claims
                                    )    No. 012174
             Claimant/Appellee      )
                                    )
v.                                  )    Appeal No.
                                    )    01A01-9612-BC-00569
STATE OF TENNESSEE,                 )
                                    )
             Defendant/Appellant    )




                    IN THE COURT OF APPEALS OF TENNESSEE
                         MIDDLE SECTION AT NASHVILLE


            APPEAL FROM THE TENNESSEE CLAIMS COMMISSION
                      AT NASHVILLE, TENNESSEE


                    HONORABLE W. R. BAKER, COMMISSIONER




John Knox Walkup
                                                   FILED
Attorney General and Reporter
                                                   October 3, 1997
Michael E. Moore
Solicitor General                                Cecil W. Crowson
                                                Appellate Court Clerk
Michael W. Catalano
Associate Solicitor General
Office of the Attorney General
Executive Offices
500 Charlotte Avenue
Nashville, TN 37243-0497
ATTORNEYS FOR DEFENDANT/APPELLANT

Bill Hodde
305 Rivergate Park Building
1994 Gallatin Road, North
Madison, TN 37115-2023
ATTORNEY FOR CLAIMANT/APPELLEE


                           VACATED and DISMISSED


                                    WILLIAM H. INMAN, SENIOR JUDGE

CONCUR:

HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION

WILLIAM C. KOCH, JR., JUDGE
DIANA MORRIS,                                      )       Tennessee Claims
                                                   )       No. 012174
                  Claimant/Appellee                )
                                                   )
v.                                                 )       Appeal No.
                                                   )       01A01-9612-BC-00569
STATE OF TENNESSEE,                                )
                                                   )
                  Defendant/Appellant              )




                                            OPINION



        This action was filed October 15, 1992 before the Tennessee Claims

Commission. The plaintiff sought two-fold relief: (1) benefits under the Workers’

Compensation Law, TENN. CODE ANN . § 50-6-101 et seq., and (2) damages for the

tort of alleged retaliatory discharge for filing a claim for workers’ compensation

benefits, as allegedly authorized by TENN. CODE ANN . § 9-8-301 et seq. The claims

were bifurcated.

        The claim for workers’ compensation benefits was heard October 22, 1993.

The Commissioner found that the plaintiff sustained a work related injury on August

24, 1990 during the course of her employment as an account clerk with the

Department of Corrections, and that she was 90 percent permanently partially

disabled as a result of this accident and entitled to benefits accordingly, plus 124

weeks for temporary total disability.1

        With respect to that portion of the complaint seeking to recover damages for

the asserted tort of retaliatory discharge, the defendant filed a motion to dismiss

pursuant to RULE 12.02(1), TENN. R. CIV. P., for lack of subject matter jurisdiction.

The Commissioner overruled the motion on January 30, 1995, holding that the

jurisdictional statute of the Claims Commission2 was sufficiently broad to

        1
        Th e total award was fo r 484 wee ks. So fa r as th e rec ord reflec ts, there were n o po st-
judgment proceedings questioning this award and we will not further notice it. Neither do we address
the anom aly inhere nt in the com bination of these judgm ents .

        2
            TENN. CODE ANN . §9-8-307(a)(1)(k ).

                                                       2
“accommodate a claim for damages for the tort of retaliatory discharge.” The claim

then lay fallow for 19 months when the Commission entered an Order, on September

9, 1996, that “the claimant has factually and legally established that she was

discharged because she filed a workers’ compensation claim,” but reserved the issue

of damages for a later determination. A judgment for damages in the amount of

$300,000.00 was entered on November 9, 1996.

       The State appeals the award of damages for a retaliatory discharge and

presents for review the issues of (1) whether the Claims Commissioner erred in

holding that he had subject matter jurisdiction over the cause of action for retaliatory

discharge for filing a workers’ compensation claim against the State, and (2) whether

the Commissioner erred in holding that the claimant is entitled to damages in the

amount of $300,000.00 for retaliatory discharge when the only relief available for

retaliatory discharge is equitable relief. In light of our disposition of the case, we do

not reach the second issue.

       The Tennessee Claims Commission is an administrative tribunal. TENN. CODE

ANN . § 9-8-301(a). It has exclusive jurisdiction to determine all monetary claims

against the State falling within certain enumerated categories, one of which, (k), is

alleged to confer jurisdiction in the Commission to entertain the subject action.

TENN. CODE ANN . § 9-8-307(a)(1)(k) provides:

       (K) Worker’s compensation claims by State employees, including injuries
       incurred by national guard members, state defense force members, civil
       air patrol members, civil defense agency personnel and emergency forest
       fire fighters while on active duty and in the course of that duty;

       (I) The Commission’s payment of these claims shall be in such amount
       and subject to such limitations set forth in title 50, chapter 6 . . .

       In finding subject matter jurisdiction in this case, the Commissioner reasoned

that the

       “jurisdictional statute . . . incorporates the provisions of Title 50, Chapter
       6 of the Tennessee Code (TENN. CODE ANN . § 50-6-101, et seq.) upon
       which all worker’s compensation cases in the Claims Commission are
       decided . . . a retaliatory discharge is a ‘device’ within the meaning of
       TENN. CODE ANN . § 50-6-1143"




       3
        “No . . . regulation or o the r de vice shall . . . operate to relieve any em ployer of a ny
       obligation . . . “

                                                      3
and cited Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn. 1993) as

authority for his action.

       Anderson did not address a jurisdictional issue. Neither was it concerned with

the creation of a cause of action. The issue was whether the facts as pleaded and

proved constituted the previously recognized tort of retaliatory discharge, and thus

Anderson is wholly inapposite to the case at hand.

       The jurisdiction of the Claims Commission is not general. The legislature

clearly limited its jurisdiction to certain categorized claims, none of which is a claim

for damages for a retaliatory discharge. It is beyond peradventure that such a claim

is a disparate tort, for which the State has not consented to be sued. Absent specific

consent, the State is immune from liability for damages resulting from torts

committed by its employees. TENN. CONST ., ART . 1, SECT. 17; Kirby v. Macon County,

892 S.W.2d 403 (Tenn. 1994).

       To paraphrase Kirby, the Claims Commission Act was an ‘Act of Grace’ to the

extent it exposed the State Treasury to the payment of certain determined, described

claims, but not further or otherwise.

       The firing of an employee for filing a workers’ compensation claim was

recognized as an actionable tort by the Supreme Court of Tennessee in Clanton v.

Cain-Sloan Company, 677 S.W.2d 441 (Tenn. 1984). This judicial remedy was

created thusly:

               “In our opinion, a cause of action for retaliatory discharge, although
       not explicitly created by the statute, is necessary to enforce the duty of the
       employer, to secure the rights of the employee and to carry out the
       intention of the legislature. A statute need not expressly state what is
       necessarily implied in order to render it effectual.”

Related cases soon followed. In Van Cleave v. McKee Baking Co., 712 S.W.2d 94

(Tenn. 1986), the Court held that “[a] claim for damages for retaliatory discharge is

not part of a workers’ compensation claim but is a separate tort action . . . “ To the

same effect is Smith v. Lincoln Brass Works, 712 S.W.2d 470 (Tenn. 1986) in which

a claim for damages for retaliatory discharge was treated as a tort action that cannot

be joined with a workers’ compensation claim. See also, Weber v. Moss, 938

S.W.2d 387 (Tenn. 1996).



                                             4
       We need not belabor the point nor engage in analysis where none is required.

The Tennessee Claims Commission is without jurisdiction to entertain claims against

the State for damages for the tort of retaliatory discharge.

       The judgment is accordingly vacated and the action is dismissed at the costs

of the appellee, Diana Morris, and any surety on her undertaking.



                                          ___________________________________
                                          William H. Inman, Senior Judge

CONCUR:



______________________________________
Henry F. Todd, Presiding Judge, Middle Section



______________________________________
William C. Koch, Jr., Judge




                                           5
