                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                      July 13, 2010 Session

                    TONYA GAGER v. RIVER PARK HOSPITAL

                     Appeal from the Circuit Court for Warren County
                         No. 2694    Larry B. Stanley, Jr., Judge


                 No. M2009-02165-COA-R3-CV - Filed October 26, 2010


Plaintiff, a nurse practitioner formerly employed by a staffing service and supplied to a
hospital emergency department, sued the hospital for retaliatory discharge under Tennessee
common law and the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1-304. The
hospital moved for summary judgment, which the trial court granted. Finding no error, we
affirm the judgment of the circuit court.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and F RANK G. C LEMENT, J R., J., joined.

James L. Harris, Nashville, Tennessee, for the appellant, Tonya Gager.

C. Eric Stevens and Sarah Lodge Tally, Nashville, Tennessee, for the appellee, River Park
Hospital.

                                             OPINION
I. Facts & Procedural History 1

       Plaintiff, Tonya Gager (“Ms. Gager”), was employed by Southeastern Emergency
Services, P.C. (“SES”) as a nurse practitioner and was assigned to work in the Emergency
Department of River Park Hospital, Inc. (“River Park” or “Defendant”). River Park staffed
its emergency room through a contractual agreement with Southeastern Emergency
Physicians, P.C. (“SEP”), an affiliate of SES. To fulfill its obligations to River Park, SEP
contracted with SES to provide non-physician personnel for River Park’s Emergency


       1
         The facts are taken from affidavits and other materials filed in support of or in opposition to
Defendant’s motion for summary judgment. There is no dispute as to the facts stated.
Department. SES and SEP were collectively doing business as Team Health, Inc. (“Team
Health”).

        On January 2, 2007, Christopher W. Dux, the former CEO of River Park (“former
CEO”), sent a letter to all nurse practitioners in the River Park Emergency Department
explaining a new hospital policy regarding patient-related communications by nurse
practitioners.2 Specifically, the CEO’s letter set out River Park’s requirement that nurse
practitioners discuss a patient with an emergency department physician before discussing the
patient with an attending or admitting physician.

       Ms. Gager was concerned about the new policy, and on January 18, 2007, she and
another nurse practitioner notified the Senior Vice President of Client Services for Team
Health, regarding her concerns. On January 30, 2007, Ms. Gager’s attorney sent a letter to
Ernie Bacon, the interim CEO of River Park (“interim CEO”) detailing her complaints about
the effect of the new policy. On February 8, 2007, the Emergency Department Director of
River Park was informed that Ms. Gager was not comfortable seeing patients under the new
policy and that she had contacted Team Health about being assigned to another facility. On
February 19, 2007, River Park’s interim CEO sent an e-mail to the Senior Vice President of
Client Services for Team Health requesting that Ms. Gager be assigned to another facility.3
Thereafter, Ms. Gager was notified, by letter, of her termination from SES.4


        2
            The letter stated, in pertinent part:

        In response to repeated complaints received from our attending physicians and in light of
        the recent $7.5M lawsuit, nurse practitioners should NOT be calling the attending or
        admitting physician to discuss or present potential admissions to the facility. The hospital
        Board of Trustees has asked that I inform you of the following information in writing.

        The nurse practitioner’s role in the Emergency Department is to treat the less severe
        patients. Therefore, when a nurse practitioner sees a patient that has been triaged to the
        physician for care (chart in the physician’s rack), the nurse practitioner MUST discuss the
        care and treatment of that patient with the emergency room physician prior to making any
        final disposition.

        (emphasis in original)
        3
           The e-mail from the interim CEO to the Senior Vice President of Client Services for Team Health
stated, “[A]s you are aware, Team Health . . . and River Park . . . have had several discussions recently
relative to Tonya Gager, Nurse Practitioner. Accordingly, and relative to Article III, Section 2 of our
agreement, this is to request that Tonya be assigned other than River Park.”
        4
            In Ms. Gager’s responses to River Park’s interrogatories she states:
                                                                                                (continued...)

                                                     -2-
       On March 20, 2007, Ms. Gager filed a complaint against River Park and SES,5
alleging breach of contract, gender discrimination, and retaliatory discharge; Ms. Gager
sought $2,500,000.00 in damages. SES filed a motion for summary judgment, which the trial
court granted; the court made the judgment final in accordance with Tenn. R. Civ. P. 54.02.
Ms. Gager appealed the decision to this Court, which affirmed the trial court’s judgment. See
Gager v. River Park Hosp. & Se. Emergency Servs., P.C., No. M2007-02470-COA-R3-CV,
2009 WL 112544 (Tenn. Ct. App. Jan. 13, 2009).

        On June 4, 2008, River Park filed a motion for summary judgment on all claims. On
July 17, 2008, the trial court granted partial summary judgment for River Park on the gender
discrimination and breach of contract claims; however, the court denied the motion with
regard to Plaintiff’s claims of retaliatory discharge. In its order, the trial court specifically
reserved for River Park the opportunity to seek summary judgment on the remaining claims
after the completion of discovery.

       On April 27, 2009, River Park filed a second motion for summary judgment on the
claims of common law and statutory retaliatory discharge.6 River Park filed exhibits,
affidavits, interrogatories, pleadings, and a deposition in support of its contention that Ms.
Gager could not establish the essential elements of her retaliatory discharge claims at trial.
In response, Ms. Gager filed her affidavit and several exhibits. Following a hearing, the
court granted summary judgment to River Park, finding that Ms. Gager was not an employee
of River Park, but rather an independent contractor; that Ms. Gager failed to identify any
“statute, common laws, regulations, or public policies that River Park’s policy violated”; that
Ms. Gager was not “acting to further an important public policy interest”; and that Ms. Gager
“did not establish a retaliatory motive by River Park asking that she not return to work at
[River Park’s] emergency room.” Ms. Gager thereafter filed a motion to alter, amend, set
aside, or reconsider the summary judgment, which the trial court denied.

       Ms. Gager timely appealed and raises the following issues:


       4
           (...continued)
       12. Identify each and every person who allegedly informed you that you were ‘being fired
       at the insistence of River Park.’

       RESPONSE: The only notification I received about being fired came from TeamHealth in
       the form of a letter on my doorstep.
       5
           The complaint originally named Team Health as a defendant, however SES was later substituted
as a party.
       6
            The basis of the statutory retaliatory discharge claim was Tenn. Code Ann. § 50-1-304.

                                                    -3-
       I.    Did not the court err in holding that Ms. Gager was not an employee
             but rather an independent contractor for River Park Hospital or was an
             agent for River Park Hospital.

      II.    Did not the court err in holding that Ms. Gager failed to identify any
             statutes, common laws, regulations, or public policies that River Park’s
             policy violated.

      III.   Did not the court err in holding that Ms. Gager was not acting to further
             an important public policy interest. Further, that she did not complain
             to a single law enforcement agency or regulatory agency.

      IV.    Did not the court err in holding that Ms. Gager did not establish a
             retaliatory motive by River Park asking that she not return to work at
             its emergency room. Further, that the reason she was fired was because
             of a confrontation with a doctor and that she was unwilling to perform
             her job.

       V.    Did not the court err in denying Ms. Gager’s Rule 59 and 60, Tenn. R.
             Civ. P., Motion to Alter or Amend the Order granting summary
             judgment to River Park.

      VI.    Did not the court err in failing to hold that Ms. Gager had a “reasonable
             belief” that what she complained about was illegal or against the public
             policy of Tennessee.

II. Standard of Review

       This case has been appealed from the trial court’s grant of summary judgment to
Defendant. A trial court’s decision on a motion for summary judgment enjoys no
presumption of correctness on appeal. In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn.
2010); Draper v. Westerfield, 181 S.W.3d 283, 288 (Tenn. 2005). Because summary
judgment is a matter of law, we review the trial court’s decision de novo and make a fresh
determination of whether the requirements of Tenn. R. Civ. P. 56 have been met. Eskin v.
Bartee, 262 S.W.3d 727, 732 (Tenn. 2008); Blair v. W. Town Mall, 130 S.W.3d 761, 763
(Tenn. 2004); Eadie v. Complete Co., 142 S.W.3d 288, 291 (Tenn. 2004). In our review, we
must consider the evidence presented at the summary judgment stage in the light most
favorable to the non-moving party and draw all reasonable inferences in the non-moving
party’s favor. Cumulus Broad., Inc. v. Shim, 226 S.W.3d 366, 373 (Tenn. 2007); Byrd v.
Hall, 847 S.W.2d 208, 210–11 (Tenn. 1993).

                                            -4-
       Summary judgment is appropriate where the moving party establishes, by a properly
supported motion, that there is no genuine issue as to any material fact and that judgment
may be rendered as a matter of law. See Tenn. R. Civ. P. 56.04; Martin v. Norfolk S. Ry. Co.,
271 S.W.3d 76, 83 (Tenn. 2008). To show there is no genuine issue of material fact, a
defendant moving party must either: “(1) affirmatively negat[e] an essential element of the
nonmoving party’s claim; or (2) show[] that the nonmoving party cannot prove an essential
element of the claim at trial.” Martin, 271 S.W.3d at 83 (citing Hannan v. Alltel Publ’g Co.,
270 S.W.3d 1, 8–9 (Tenn. 2008)). To meet this burden, the moving party must “either
produce evidence or refer to evidence previously submitted by the nonmoving party that
negates an essential element of the nonmoving party’s claim or shows that the nonmoving
party cannot prove an essential element of the claim at trial.” Id. at 84. In addition, a mere
“assertion that the nonmoving party has no evidence” will not suffice. Id. (citing McCarley
v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)).

       If the moving party makes a “properly supported motion, then the nonmoving party
is required to produce evidence of specific facts establishing that genuine issues of material
fact exist.” Id. (citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215). This may
be accomplished by:

       (1) pointing to evidence establishing material factual disputes that were over-
       looked or ignored by the moving party; (2) rehabilitating the evidence attacked
       by the moving party; (3) producing additional evidence establishing the
       existence of a genuine issue for trial; or (4) submitting an affidavit explaining
       the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule 56.0[7].


Id. (citing McCarley, 960 S.W.2d at 588; accord Byrd, 847 S.W.2d at 215 n.6). If the
moving party does not satisfy the burden of production, the nonmoving party’s burden to
produce discovery materials or affidavits is not triggered, and the moving party’s motion for
summary judgment must be denied. Hannan, 270 S.W.3d at 5 (citing Byrd, 847 S.W.2d at
215). Consequently, summary judgment should be granted only when the undisputed facts,
and the inferences reasonably drawn from the undisputed facts, lead to the conclusion that
the party seeking the summary judgment is entitled to judgment as a matter of law. Green
v. Green, 293 S.W.3d 493, 514 (Tenn. 2009); Blair, 130 S.W.3d at 763.




                                              -5-
III. Analysis

        Ms. Gager sued River Park for retaliatory discharge under Tennessee common law
and the Tennessee Public Protection Act7 (“TPPA”), Tenn. Code Ann. § 50-1-304. To
receive summary judgment, River Park, as the moving party, had the burden to negate an
essential element of Ms. Gager’s claims of retaliatory discharge or to establish that Ms.
Gager could not prove an essential element of the claims at trial. See Mills v. CSX Transp.,
Inc., 300 S.W.3d 627, 631 (Tenn. 2009).

     A plaintiff seeking to establish a claim for retaliatory discharge under Tennessee
common law must prove the following:

        (1) that an employment-at-will relationship existed;
        (2) that the employee was discharged;
        (3) the reason for the discharge was that the employee 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 the
        employee was the employee’s exercise of protected rights or compliance with
        clear public policy.

Gossett v. Tractor Supply Co., No. M2007-02530-SC-R11-CV, 2010 WL 3633459, at *3
(Tenn. 2010) (citing Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 862 (Tenn. 2002)).
Similarly, to establish a claim of retaliatory discharge under the TPPA, Tenn. Code Ann. §
50-1-304, the Plaintiff must show the following four elements:

        (1) The plaintiff’s status as an employee of the defendant;
        (2) The plaintiff’s refusal to participate in, or to remain silent about, illegal
        activities;8
        (3) The employer’s discharge of the employee; and




        7
           The TPPA, Tenn. Code Ann. § 50-1-304, is informally referred to as the “Tennessee
Whistleblower Act.” See Burnett v. Am.’s Collectibles Network, Inc., No. 2009-00591-COA-R3-CV, 2010
WL 669246, at *6 (Tenn. Ct. App. Feb. 25, 2010).
        8
          For purposes of the TPPA, “illegal activities” are defined 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 the public health,
safety or welfare.” Tenn. Code Ann. § 50-1-304(3).

                                                       -6-
        (4) An exclusive casual relationship between the plaintiff’s refusal to
        participate in or remain silent about illegal activities and the employer’s
        termination of the employee.

Hill v. Perrigo of Tennessee, No. M2000-02-COA-R3-CV, 2001 WL 694479, at *3–4 (Tenn.
Ct. App. 2001) (citations omitted); see also Counce v. Accension Health, No. M2009-00741-
COA-R3-CV, 2010 WL 786001, at *4 (Tenn. Ct. App. 2010).

        The existence of an employer-employee relationship is an essential element of both
a statutory and common law claim for retaliatory discharge. Consequently, Ms. Gager must
establish that she was the employee of River Park to maintain her claims of retaliatory
discharge. As grounds for summary judgment, River Park contended there was no employer-
employee relationship between itself and Ms. Gager; in support of its contention it relied
upon, inter alia, the employment agreement between Ms. Gager and SES 9 and an email from
the interim CEO of River Park to the Senior Vice President of Client Services at Team
Health.

        Ms. Gager’s employment agreement with SES defines SES as “Employer” and
identifies her duties as follows: “Gager shall serve as a nurse practitioner and will perform
all duties assigned by Employer at such times and Facilities designated by Employer.” In the
agreement, she contracted to work not less than 156 hours per month and not more than
1,872 hours per year. The agreement also establishes her annual salary and benefits 10 and
obligates SES to provide professional liability insurance for “medical services rendered by
Gager in satisfaction of Gager’s obligations under this Agreement.” In addition, SES
retained the power to terminate Ms. Gager: “[t]his agreement may be immediately terminated
by Employer for cause upon the occurrence of any of the following: Gager’s breach of this
Agreement, Gager’s loss of license, loss of privileges at a Facility by Gager, if a Facility
requests that Gager not be scheduled to work at the Facility . . . .”

       The email from River Park’s interim CEO, requested that Ms. Gager be “assigned
other than River Park.” In his affidavit, the interim CEO stated that, in sending the email he




        9
          The employment agreement between Ms. Gager and SES was included as Exhibit 2 to River Park’s
first motion for summary judgment, which was incorporated into its second motion.
        10
         With regard to benefits, the Agreement states: “Gager will be entitled to such employee benefits
as Employer shall have in effect for its full-time employees as may be applicable.”


                                                  -7-
was “exercis[ing] the hospital’s rights under our contract with SEP[11 ] and inform[ing] Rita
Eden of River Park’s desire that Plaintiff be assigned somewhere other than at River Park.”
The interim CEO further explained that River Park “did not have the authority to direct
termination of SES’ employees” and that “[a]t all times relative to this lawsuit, River Park
contracted with [SEP] to provide the necessary staff for its Emergency Room. River Park
did not employ physicians or nurse practitioners in the ER.” The “Emergency Department
Services Agreement,” which defined the relationship between River Park and SEP, provided
that “[SEP] will, at its expense, contract with the physicians and an affiliated professional
corporation employing the mid-level practitioners to render emergency medical services at
[River Park].” The agreement further stated that nurse practitioners rendering services at
River Park would do so “by and through contractual agreements between such nurse
practitioners . . . and an affiliated professional corporation of [SEP].” 12

       Ms. Gager’s employment agreement, SEP’s agreement with River Park, and the
affidavit and email of the interim CEO support River Park’s assertion that it was not the
employer of Ms. Gager,13 thereby negating an essential element of Ms. Gager’s claim and
shifting the burden to her to establish a factual dispute as to her employment relationship
with River Park. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008). She could
do this by, among other things, pointing to overlooked evidence or introducing evidence
establishing a material issue of fact for trial. Id.

       In opposition to River Park’s motion for summary judgment, Ms. Gager submitted an
affidavit and several exhibits. The portions of her affidavit which address her claim that she
was an employee of River Park are as follows:



       11
            The “rights” to which the Interim CEO is referring are contained in section III (Removal of
Physicians and Physician Extenders), paragraph 2 (For Cause) of the Emergency Department Services
Agreement between SEP and River Park. The specific language of the agreement states, “Hospital may
require the removal of a Physician or Physician Extender for cause upon five (5) days written notice upon
reasonable notice. In the event Hospital requests that Contractor remove Physician or Physician Extender
for cause, such request must be made in writing specifying the reaon(s) thereof.”
        12
           Presumably, SES was the “affiliated professional corporation of [SEP]” referred to in SEP’s
contract with River Park.
        13
             Indeed, Ms. Gager’s brief on appeal states:

        While it is true that Tonya Gager was, technically, an employee of an entity other than River
        Park Hospital, the court’s finding of fact did not take into consideration the undisputed facts
        leading inexorably to the conclusion that at all times pertinent, Ms. Gager was a constructive
        employee of River Park. She was a “loaned servant.”

                                                     -8-
        3. At all times pertinent I was employed as a nurse practitioner at River Park
        Hospital. By statute my position is the same as a Physician’s Assistant in that
        we are considered mid-level providers.
        ...
        16. Not only was I a “loaned servant” or employee of River Park, I was
        approved for a reappointment to the Medical Staff at River Park Hospital with
        privileges as Allied Health Professional-Emergency Medicine.

In support of her contention in paragraph 16, quoted above, Ms. Gager produced a letter from
the former CEO of River Park dated December 1, 2006, informing her that the Board of Trust
had approved her “reappointment to the Medical Staff at River Park Hospital with privileges
as Allied Health Professional-Emergency Medicine.” The reappointment period was
December 1, 2006 through December 1, 2008. Included in the letter was a document styled
“Physician Assistant and Nurse Practitioner Delineation of Privilege.”

       In reply, River Park pointed to its agreement with SEP which required all medical
personnel, as a condition of their assignment in River Park’s Emergency Department to
“receive and maintain, staff membership and privileges in accordance with Hospital and
Medical Staff bylaws . . . .” River Park contended that the letter from the interim CEO
extending privileges to Ms. Gager was in accordance with River Park’s contractual
agreement with SEP, and was not an extension of an employment relationship to Ms. Gager.

       On appeal, Ms. Gager contends that she was a “loaned servant” of River Park and that
such status satisfies the employer-employee relationship element in her retaliatory discharge
claims. While the question of whether Ms. Gager was the loaned servant of River Park
would ordinarily be a question of fact for the jury, to the extent that Ms. Gager’s relationship
with SES, and River Park’s relationship with SEP, is governed by contract, we address the
issue as a matter of law. See Parker v. Vanderbilt Univ., 767 S.W.2d 412, 417 (Tenn. Ct.
App. 1989).14




        14
                   . . . whether a servant of one employer has become the servant of another
                 is a question of fact. [citation omitted] Ordinarily, that determination
                 would be for the jury. However, in this case, the relationship between the
                 two hospitals is governed by a written agreement. The interpretation of an
                 unambiguous written agreement is a question of law for the court. Merritt
                 v. Nationwide Warehouse Co., 605 S.W.2d 250, 255 (Tenn. Ct. App. 1980).

                         Inasmuch as the loaned servant doctrine is based on the relationship between two
Parker, 767 S.W .2d at 417.
employers, our focus is on the agreement between SEP and River Park.

                                                    -9-
        The “loaned servant doctrine” is a principle of agency law in which a general
employer “loans” his agent to a special employer, thereby giving the special employer control
over the agent, along with responsibility for the agent’s actions or omissions. See
Restatement (Second) of Agency § 277 cmt. d (2010) (“If . . . the temporary employer
exercises such control over the conduct of the employee as would make the employee his
servant were it not for his general employment, the employee as to such act becomes the
servant of the temporary employer.”); see also Smartt v. NHC Healthcare/McMinnville, LLC,
No. M2007-02026-COA-R3-CV, 2009 WL 482475, at *6 (Tenn. Ct. App. Feb. 24, 2009)
(citing Arrow Elec. v. Adecco Employment Serv., Inc., 195 S.W.3d 646, 651 (Tenn. Ct. App.
2005); Parker, 767 S.W.2d 412, 418 (Tenn. Ct. App. 1988)) (“if an employee of one
employer falls under the scope of a second employer, the liability for the employee’s
negligence may shift to the second employer.”). The Tennessee Supreme Court adopted the
Restatement of Agency view in Gaston v. Sharpe, 168 S.W.2d 784 (1943), and set out a test
to determine whether an employee of one employer is the loaned servant of another
employer:

       [A] servant at a particular time may remain under the control of his general
       employer for some purposes and yet be under the control of a special employer
       for others. Likewise it sometimes happens that a particular work in which the
       servant is engaged may be properly considered as the work or business of both
       the general employer and the special employer.

               The question is difficult. It is considered at some length in Restatement
       of Agency, § 227. We take the following from Restatement as a satisfactory
       rule: “Since the question of liability is always raised because of some specific
       act done, the important question is not whether or not he remains the servant
       of the general employer as to matters generally, but whether or not, as to the
       act in question, he is acting in the business of and under the direction of one
       or the other. It is not conclusive that in practice he would be likely to obey the
       directions of the general employer in case of conflict of orders. The question
       is as to whether it is understood between him and his employers that he is to
       remain in the allegiance of the first as to a specific act, or is to be employed in
       the business of and subject to the direction of the temporary employer as to the
       details of such act. This is a question of fact in each case”

Id. at 786. In Armoneit v. Elliott Crane Serv., Inc., 65 S.W.3d 623 (Tenn. Ct. App. 2001),
this court applied the loaned servant doctrine and further explained that “control is a key
element” in determining whether an employer-employee relationship exists. Id. at 625. “In
Tennessee, the right to control the result is not determinative of the existence of the relation



                                              -10-
of master and servant, but the actual control of means and methods is.” Id. (citing McDonald
v. Dunn Constr. Co., 185 S.W.2d 517, 520 (1945)).

        We are not aware of any case, and none has been cited to us, in which the loaned
servant doctrine has been applied to establish the employer-employee relationship required
in retaliatory discharge causes of action under Tennessee common law or Tenn. Code Ann.
§ 50-1-304.15 However, we are persuaded that certain circumstances may exist in which the
loaned servant doctrine could be applied to give rise to an employer-employee relationship
in such cases. Therefore, we will adapt the general test set out in Gaston v. Sharpe to Ms.
Gager’s retaliatory discharge claims to determine whether she was the loaned servant of
River Park.

        River Park staffed its Emergency Department with personnel employed by or provided
through staffing agencies, one of which was SEP. Ms. Gager was employed by SES and
placed at River Park pursuant to the terms of her contract. Her placement, as was that of all
physicians and nurse practitioners in the River Park Emergency Department, was subject to
the hospital and staff by-laws. In addition to her compliance with the hospital and staff by-
laws, Ms. Gager was required to comply with other general hospital policies, including the
policy articulated by the interim CEO which was the impetus of her lawsuit. Thus, River
Park did exert a certain amount of control over the means and methods of Ms. Gager’s
employment at River Park. However, as noted above, the terms of Ms. Gager’s employment
were governed by her contract with SES. Most importantly, for purposes of this case, SES
retained the power to terminate Ms. Gager; River Park had no such authority. River Park,
in accordance with its contract with SEP, requested that Ms. Gager be assigned to a different
facility. Thereafter, SES exercised its right to terminate Ms. Gager rather than assign her to
a different facility. As acknowledged in Gaston, a temporary employee may be considered
the loaned servant of the special employer for some purposes and not for others. On the facts


        15
            The loaned servant doctrine has generally been applied in Tennessee in two distinct scenarios: (1)
claims for worker’s compensation, and (2) instances in which an employer who temporarily borrows and
exercises control over another’s employee is held to assume liability for the borrowed employee’s tortious
conduct. See Arrow Elec. v. Adecco Employment Serv., Inc., 195 S.W.3d 646 (Tenn. Ct. App. 2005) (holding
that a temporary employee was the loaned servant of employer, rather than staffing agency, and as such,
employer was liable for employee’s negligence in operating a forklift); Catlett v. Indemnity Ins. Co., 813
S.W.2d 411 (Tenn. 1991) (finding that a borrowed employee was precluded from receiving worker’s
compensation from his general employer because he was the loaned servant of his temporary employer);
Parker v. Vanderbilt Univ., 767 S.W.2d 412 (Tenn. Ct. App. 1988) (finding Vanderbilt doctors on duty at
Nashville General Hospital were the loaned servants of Nashville General Hospital for purposes of a medical
malpractice action); Richardson v. Russom Crane Rental Co., 43 S.W.2d 590 (Tenn. Ct. App. 1975) (holding
that the crane operator was the borrowed servant of a temporary employer who directed the operation of the
crane).

                                                    -11-
presented here, for purposes of her retaliatory discharge claim, Ms. Gager was not the loaned
servant or employee of River Park.

        Moreover, to sustain a cause of action for retaliatory discharge, Ms. Gager would have
to prove River Park terminated her employment. Ms. Gager offered no proof to rebut the
interim CEO’s affidavit which made clear that River Park had no authority to direct the
termination of SES’ employees and, in fact, River Park did not terminate her. Ms. Gager’s
failure to point to contradictory evidence on this issue left no genuine issue of material fact
to be resolved by the trier of fact.

IV. Conclusion

       Considering the evidence in the light most favorable to Ms. Gager, River Park has
successfully negated essential elements of Ms. Gager’s claims of retaliatory discharge,
namely that she was the employee of River Park and that River Park terminated her; River
Park is entitled to summary judgment as a matter of law.

       Our determination that River Park is entitled to summary judgment pretermits
discussion of the remaining issues, which are predicated upon a finding that valid causes of
action for retaliatory discharge existed.

       The judgment of the Circuit Court is affirmed.




                                           _________________________________
                                           RICHARD H. DINKINS, JUDGE




                                             -12-
