                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                November 4, 2013 Session

  DAVID G. YOUNG, INDIVIDUALLY AND AS CITY ADMINISTRATOR FOR THE
        CITY OF LAFOLLETTE v. CITY OF LAFOLLETTE ET AL.

          Interlocutory Appeal from the Circuit Court for Campbell County
                        No. 14453     John D. McAfee, Judge


             No. E2013-00441-COA-R9-CV-FILED-FEBRUARY 10, 2014


In this retaliatory discharge action brought by a former city administrator of the City of
LaFollette, Tennessee (“LaFollette”), the trial court, following a bench hearing, denied
LaFollette’s motion to strike the city administrator’s demand for a jury trial. The trial court,
however, granted LaFollette permission for interlocutory appeal on the question of whether
the city administrator’s request for a jury trial properly may be granted pursuant to the
Tennessee Public Protection Act (“TPPA”), see Tenn. Code Ann. § 50-1-304 (Supp. 2013),
despite the non-jury provision of the Tennessee Governmental Tort Liability Act (“GTLA”),
see Tenn. Code Ann. §§ 29-20-307 (Supp. 2013). We conclude that the non-jury requirement
of the GTLA applies to this TPPA claim. We therefore reverse the trial court’s denial of
LaFollette’s motion to strike the city administrator’s jury demand, and we remand to the trial
court for further proceedings without a jury.

       Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
                              Reversed; Case Remanded

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.

Jon G. Roach, Emily A. Cleveland, and Brian R. Bibb, Knoxville, Tennessee, for the
appellant, City of LaFollette.

David H. Dunaway, LaFollette, Tennessee, for the appellee, David G. Young.
                                              OPINION

                              I. Factual and Procedural Background

       The plaintiff, David G. Young, was the city administrator for LaFollette from August
5, 2008, until he was suspended from his duties one year later on August 4, 2009. LaFollette
terminated Mr. Young’s employment on September 1, 2009, amid allegations against him of,
inter alia, sexual harassment and harassment brought by Lynda White, the LaFollette City
Clerk at the time. Ms. White initially made her grievances known in a May 1, 2009 letter to
the mayor and city council. Mr. Young initiated the instant action on May 7, 2009, by filing
a complaint with the Campbell County Circuit Court (“trial court”), alleging, inter alia,
anticipatory and actual breach of his employment contract. LaFollette filed a motion for
summary judgment on August 18, 2009.

        Meanwhile, in a companion action to the case at bar, Mr. Young filed a petition for
writ of certiorari with the Campbell County Chancery Court. On February 22, 2010, the
Chancery Court entered an order nullifying the termination of Mr. Young’s employment,
finding insufficient cause and lack of due process. LaFollette appealed. The Chancery
Court’s ruling was reversed by this Court, which held that the lower court erred in ruling that
LaFollette “acted illegally, arbitrarily, and without sufficient material evidence.” See Young
v. City of LaFollette, 353 S.W.3d 121, 127 (Tenn. Ct. App. 2011) (“Every salient fact in the
record shows that LaFollette had the right to terminate Young’s employment by a majority
vote of the City Council.”).

       On February 26, 2010, Mr. Young amended his complaint in the instant Circuit Court
action by asserting, inter alia, a retaliatory discharge claim in violation of the TPPA. See
Tenn. Code Ann. § 50-1-304. Because its pending motion for summary judgment had not
yet been heard, LaFollette subsequently filed an amended motion for summary judgment and
a counter-complaint for declaratory judgment on April 9, 2010.

        Following a stay in proceedings due to the appeal of the companion case, the trial
court on August 11, 2011, granted LaFollette’s amended motion for summary judgment on
all claims except Mr. Young’s sole remaining claim of retaliatory discharge brought against
LaFollette pursuant to the TPPA.1 On July 5, 2012, LaFollette filed another motion for
summary judgment, seeking dismissal of the retaliatory discharge claim. Upon a hearing
conducted November 7, 2012, the trial court denied LaFollette’s second motion for summary


        1
         Although Ms. White and Mr. Stanfield remain named in the style of this action, this interlocutory
appeal involves only one defendant, LaFollette, regarding the retaliatory discharge claim pursuant to the
TPPA.

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judgment. Mr. Young moved orally to set the case for trial and requested a trial by jury.
LaFollette argued that Mr. Young was not entitled to a jury trial pursuant to the GTLA. See
Tenn. Code Ann. §29-20-307. At the trial court’s request, each party submitted a written
brief regarding the issue. LaFollette subsequently filed a motion to strike Mr. Young’s jury
demand.

       Following a hearing on December 10, 2012, the trial court entered an order denying
LaFollette’s motion to strike the jury demand on February 11, 2013. The trial court,
however, also granted permission to LaFollette for an interlocutory appeal to this Court on
the issue of whether Mr. Young is entitled to a jury trial. See Tenn. R. App. P. 9. This
permissive interlocutory appeal ensued.

                                      II. Issue Presented

       This Court granted an interlocutory appeal in the instant action to address the
following issue:

       Whether the provision of the Tennessee Governmental Tort Liability Act
       (“GTLA”) that requires claims brought against governmental entities be
       decided “without the intervention of a jury,” Tennessee Code Annotated § 29-
       20-307, applies to a statutory retaliatory discharge claim against a
       governmental entity brought pursuant to the Tennessee Public Protection Act,
       see Tennessee Code Annotated § 50-1-304.

                                   III. Standard of Review

        The issue raised in this interlocutory appeal is a question of law. We review questions
of law, including those of statutory construction, de novo with no presumption of correctness.
See Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41, 43 (Tenn. 2013) (citing
Mills v. Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn. 2012)). Our Supreme Court has
summarized the principles involved in statutory construction as follows:

               Our “primary goal in interpreting statutes is ‘to ascertain and give effect
       to the intention and purpose of the legislature.’” Stewart v. State, 33 S.W.3d
       785, 791 (Tenn. 2000) (quoting Gleaves v. Checker Cab Transit Corp., 15
       S.W.3d 799, 802 (Tenn. 2000)). When the statutory language is unambiguous,
       we apply its plain and ordinary meaning. Planned Parenthood of Middle Tenn.
       v. Sundquist, 38 S.W.3d 1, 24 (Tenn. 2000). When the statutory language is




                                               -3-
       ambiguous, we must look to other sources, such as legislative history, to
       determine the intent and purpose of the legislature. Id.

Conley v. State, 141 S.W.3d 591, 595 (Tenn. 2004); see also Cunningham, 405 S.W.3d at 43.

 IV. Applicability of Tennessee Governmental Tort Liability Act’s Non-Jury Provision
                       to Tennessee Public Protection Act Claim

        LaFollette contends that the TPPA, while it provides for removal of sovereign
immunity independent of the GTLA, does not remove a cause of action from the control of
the GTLA absent an express statutory mandate to do so. Mr. Young contends that he should
retain his right to a jury trial because the TPPA does not expressly preclude a jury trial. We
conclude that the GTLA applies to claims brought against a municipality pursuant to the
TPPA and that the instant action must therefore be tried without a jury.

       Mr. Young argues that his claim is analogous to a claim brought under the Tennessee
Human Rights Act (“THRA”). See Tenn. Code Ann. §§ 4-21-101 to -702 (2012 & Supp.
2013). He acknowledges, however, that this Court’s recent decision in Sneed v. City of Red
Bank, No. E2012-02112-COA-R9-CV, 2013 WL 3326133 (Tenn. Ct. App. June 27, 2013),
perm. granted (Tenn. Nov. 12, 2013), relates directly to the interplay between the GTLA and
THRA, as well as by extension, the interplay between the GTLA and the TPPA. In Sneed,
this Court held on interlocutory appeal that “the Tennessee Governmental Tort Liability Act
applies to claims brought against a municipality pursuant to the Tennessee Human Rights
Act; therefore, that claim must also be tried without a jury.” Id. at *1. Mr. Young asks this
Court to reconsider its holding in Sneed.

       The doctrine of sovereign immunity “has been part of the common law of Tennessee
for more than a century and provides that suit may not be brought against a governmental
entity unless that governmental entity has consented to be sued.” Hawks v. City of
Westmoreland, 960 S.W.2d 10, 14 (Tenn. 1997) (internal citations omitted). The GTLA,
codified in 1973, governs claims against cities and other local government agencies,
providing for circumstances when sovereign immunity is removed. See Tenn. Code Ann. §§
29-20-201 to -408 (2012 & Supp. 2013); Lucius v. City of Memphis, 925 S.W.2d 522, 525
(Tenn. 1996). The GTLA specifically provides that proceedings falling under its governance
shall be conducted without a jury. Tennessee Code Annotated § 29-20-307 provides in
pertinent part:




                                             -4-
        The circuit courts shall have exclusive original jurisdiction over any action
        brought under this chapter and shall hear and decide such suits without the
        intervention of a jury, except as otherwise provided in § 29-20-313(b) . . . .

(Emphasis added).2

        In Sneed, this Court further explained regarding the GTLA and the THRA:

        Passage of the GTLA constituted “an act of grace through which the
        legislature provided general immunity to governmental entities from tort
        liability but removed it in certain limited and specified instances.” Kirby v.
        Macon Cnty., 892 S.W.2d 403, 406 (Tenn. 1994). The certain limited and
        specified instances are as follows:

                [1] Immunity from suit of all governmental entities is removed for
                injuries resulting from the negligent operation by any employee of a
                motor vehicle or other equipment while in the scope of employment.

                [2] Immunity from suit of a governmental entity is removed for any
                injury caused by a defective, unsafe, or dangerous condition of any
                street, alley, sidewalk or highway, owned and controlled by such
                governmental entity. “Street” or “highway” includes traffic control
                devices thereon.

                [3] Immunity from suit of a governmental entity is removed for any
                injury caused by dangerous or defective condition of any public
                building, structure, dam, reservoir or other public improvement owned
                and controlled by such governmental entity.

                [4] Immunity from suit of all governmental entities is removed for
                injury proximately caused by a negligent act or omission of any
                employee within the scope of his employment except if the injury arises
                out of [certain specific conditions].

        Tenn. Code Ann. §§ 29-20-202(a), -203(a), -204(a), -205. The GTLA
        provides the circuit court with “original exclusive jurisdiction” to hear any


        2
        Inasmuch as the exception referenced in section 313(b) involves actions naming multiple defendants
when at least one is a governmental entity or a governmental entity employee and at least one is not, the
exception does not apply to the instant action. See Tenn. Code Ann. § 29-20-313(b).

                                                   -5-
       claim brought pursuant to the act without the intervention of a jury. Tenn.
       Code Ann. § 29-20-307.

              For claims not falling within the certain limited and specified instances
       provided for in the GTLA, the General Assembly created subsequent acts to
       further remove governmental immunity. While some acts were specific to
       governmental entities, others simply included governmental entities as possible
       defendants. The THRA, codified in 1978 at Tennessee Code Annotated
       section 4-21-101, et seq., was one such unspecific act that applied to
       governmental entities as well as private citizens.

               The THRA protects employees from adverse employment decisions
       based upon an employee’s “race, creed, color, religion, sex, age, or national
       origin.” Tenn. Code Ann. § 4-21-101. The THRA is specifically applicable
       to private employers with eight or more employees and to “the state, or any
       political or civil subdivision thereof.” Tenn. Code Ann. § 4-21-102(5). An
       aggrieved individual may file a complaint against his or her governmental or
       non-governmental employer with the Tennessee Human Rights Commission
       or with the circuit or chancery courts of this state. Tenn. Code Ann. §§ 4-21-
       302, -311. Unlike the GTLA, “[t]he THRA neither expressly provides for or
       excludes the right to a trial by jury.” [University of Tenn. of Chattanooga v.]
       Farrow, [No. E2000-02386-COA-R9-CV,] 2001 WL 935467, at *5 [(Tenn.
       Ct. App. Aug. 16, 2001)].

Sneed, 2013 WL 3326133 at *2.

       As with the THRA, the TPPA includes governmental entities as possible defendants
and does not expressly provide for or exclude the right to a jury trial. See Tenn. Code Ann.
§ 50-1-304. Enacted in 1990, the TPPA is the Tennessee legislature’s codification of the
common-law cause of action for retaliatory discharge. See Tenn. Code Ann. § 50-1-304;
Franklin v. Swift Transp. Co., Inc., 210 S.W.3d 521, 527 (Tenn. Ct. App. 2006). The TPPA
was revised in 1997 to include governmental entities within its definition of employers. See
2009 Pub. Acts, ch. 161, § 2. “By enacting the Public Protection Act, the legislature
recognized the importance of encouraging employees to report violations ‘of those laws and
regulations ‘intended to protect the public health, safety or welfare.’” Id. at 528 (quoting Guy
v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 537 (Tenn. 2002).




                                              -6-
       Tennessee Code Annotated § 50-1-304 provides in pertinent part:

       (b) No employee shall be discharged or terminated solely for refusing to
       participate in, or for refusing to remain silent about, illegal activities.

       ...

       (d)(1) Any employee terminated in violation of subsection (b) shall have a
       cause of action against the employer for retaliatory discharge and any other
       damages to which the employee may be entitled.

As this Court has explained:

       To prevail under the Public Protection Act, the plaintiff must establish (1) his
       status as an employee of the defendant employer; (2) his refusal to participate
       in, or remain silent about, “illegal activities” as defined under the Act; (3) his
       termination; and (4) an exclusive causal relationship between his refusal to
       participate in or remain silent about illegal activities and his termination.

Franklin, 210 S.W.3d 521 at 528 (citing Tenn. Code Ann. § 50-1-304).

        LaFollette relies on a recent Tennessee Supreme Court decision and two recent
unpublished decisions of this Court in support of its contention that the GTLA controls in
this action and precludes a jury trial. First, in Cunningham v. Williamson County Hospital
District, our Supreme Court considered whether a claim brought under the Tennessee
Medical Malpractice Act (“TMMA”), see Tenn. Code Ann. §§ 29-26-115 to -122 (2012 &
Supp. 2013), was constrained by the statute of limitations in the GTLA. See 405 S.W.3d 41,
43 (Tenn. 2013). The Supreme Court held that the claim was so constrained because the
language of the TMMA “fails to evince an express legislative intent to extend the statute of
limitations in GTLA cases.” Cunningham, 405 S.W.3d at 45-46.

        Second, in Jeffrey Adair Young v. Davis, No. E2008-01974-COA-R3-CV, 2009 WL
3518162 at *5-6 (Tenn. Ct. App. Oct. 30, 2009), this Court decided the question of whether
retaliatory discharge claims brought under the TPPA must be in compliance with the GTLA
in terms of subject matter jurisdiction, specifically, whether such claims must be heard in the
circuit courts. This Court vacated the order of the chancery court and remanded for transfer
to the circuit court, explaining:

               As to the Public Protection Act claim, the Plaintiff assumes that the
       statute which creates a private right of action against employers, including

                                              -7-
       governmental entities, also removes that private right of action from the
       universe of the GTLA. It is clear to us that the GTLA and governmental
       immunity in general still sets boundaries applicable to retaliatory discharge
       claims and Public Protection Act claims. Retaliatory discharge claims that do
       not satisfy the elements of the Public Protection Act are subject to the GTLA.
       Baines v. Wilson County, 86 S.W.3d 575 (Tenn. Ct. App. 2002). The GTLA
       prevents suits against governmental entities based on common law retaliatory
       discharge. Id. at 581, 583.

Young v. Davis, 2009 WL 3518162 at *6 (stating also that “it appears to us that even claims
which satisfy the elements of the statute must be brought ‘in compliance’ with the GTLA.”).
Mr. Young distinguishes the instant action from Young v. Davis, asserting that (1) this action
does not involve a dispute regarding subject matter jurisdiction, (2) the claim in the instant
case is more analogous to a civil rights claim under the THRA, and (3) the decision in Young
v. Davis is persuasive rather than controlling authority.

       This Court was presented with similar arguments in Sneed, wherein the plaintiff
brought his claim under the THRA and argued that his case was distinguishable from Young
v. Davis “because the court in Young [v. Davis] merely considered a question of venue for
a TPPA claim.” See Sneed, 2013 WL 3326133 at *4. In reversing the trial court’s ruling that
the GTLA did not preclude a jury trial on the THRA claim, this Court concluded:

       Like the TPPA and the newly amended TMMA, the THRA is an act that
       created a private right of action against governmental entities and private
       citizens. Tenn. Code Ann. § 4-21-101. It stands to reason that such acts
       would generally govern the way in which claims must be brought and tried,
       regardless of whether the defendant was a governmental entity or a private
       citizen. However, differentiating between a governmental entity and a private
       citizen is appropriate and necessary because the application of general
       provisions contained in an act to private citizens does not implicate the
       doctrine of sovereign immunity, whereas applying the same provisions to
       governmental entities has different implications. See generally Whitmore v.
       Shelby Cnty. Govt., No. W2010-01890-COA-R3-CV, 2011 WL 3558285, at
       *7 (Tenn. Ct. App. Aug. 15, 2011) (holding that state entities could not use the
       saving statute to re-file a THRA claim).

               While the GTLA created private rights of action against governmental
       entities, it was also the groundbreaking act that statutorily removed general
       common law sovereign immunity. As such, we conclude that it is still
       generally applicable to suits against governmental entities unless the act at

                                             -8-
        issue specifically provides otherwise or is only applicable to governmental
        entities and provides its own remedy. See generally Cruse v. City of
        Columbia, 922 S.W.2d 492, 496-97 (Tenn. 1996) (holding the GTLA
        inapplicable when the suit was filed pursuant to an independent statute only
        applicable to government entities). As relevant to this case, the GTLA
        provides that suits must be brought in circuit court without the intervention of
        a jury. Tenn. Code Ann. § 29-20-307. In contrast, the THRA provides for
        suits to be brought in either chancery or circuit court but is silent as to whether
        claims must be tried with or without the intervention of a jury. Tenn. Code
        Ann. § 4-21-311. The THRA is also silent as to whether the choice of venue
        provision specifically applies to claims against governmental entities in
        contravention of the GTLA. In the absence of an express provision to the
        contrary, we hold that the GTLA applies to claims brought against a
        municipality pursuant to the THRA, thereby requiring the claim to be tried in
        circuit court without the intervention of a jury. Accordingly, we reverse the
        decision of the trial court.

Sneed, 2013 WL 3326133 at *4.

       As to Mr. Young’s argument regarding the authority of this Court’s decisions in
unpublished cases, such as Young v. Davis and Sneed, we note that “[w]hile it is true that
unpublished opinions are not controlling, Tenn. S. Ct. Rule 4(G) specifically states that
unpublished cases constitute persuasive authority.”3 Edwards v. City of Memphis, 342
S.W.3d 12, 17-18 (Tenn. Ct. App. 2010); see, e.g., Smith County Regional Planning Comm’n
v. Hiwassee Village Mobile Home Park, LLC, 304 S.W.3d 302, 318 (Tenn. 2010) (analyzing
several unpublished opinions of this Court in characterizing the range of factual situations
capable of qualifying real property for grandfather clause protection from zoning

        3
            Rule 4(G) of the Rules of the Tennessee Supreme Court provides:

                 (G)(1) An unpublished opinion shall be considered controlling authority between
        the parties to the case when relevant under the doctrines of the law of the case, res judicata,
        collateral estoppel, or in a criminal, post-conviction, or habeas corpus action involving the
        same defendant. Unless designated “Not For Citation,” “DCRO” or “DNP” pursuant to
        subsection (E) of this rule, unpublished opinions for all other purposes shall be considered
        persuasive authority. Unpublished opinions of the Special Workers’ Compensation Appeals
        Panel shall likewise be considered persuasive authority.
                 (2) Opinions reported in the official reporter, however, shall be considered
        controlling authority for all purposes unless and until such opinion is reversed or modified
        by a court of competent jurisdiction.

(Emphasis in original.)

                                                     -9-
regulations). We recognize that our Supreme Court, having granted certiorari to the appellant
in Sneed, will address and provide controlling authority for the issue at hand in this
interlocutory appeal. See Tenn. S. Ct. R. 4(C) (“If an application for permission to appeal
is filed and granted, the opinion of the intermediate appellate court shall not be published in
the official reporter, unless otherwise directed by the Tennessee Supreme Court.”).

        Mr. Young, as did the plaintiff in Sneed, asks us to reject our prior reasoning in favor
of that contained within a federal district court order, namely Lee v. Maury County,
Tennessee Board of Education, 2011 U.S. Dist. LEXIS 33258 (M.D. Tenn. Mar. 29, 2011).
In Lee, the federal court applied Tennessee law to rule that for a plaintiff bringing an action
alleging racial and gender discrimination in employment pursuant to Title VII, the THRA,
and 42 U.S.C. § 1981, “the TGTLA limitation on jury trials is not applicable . . . .” We note
first, as we did in Sneed, that the Lee order is a district court decision and as such, is not
binding on this Court. See Gossett v. Tractor Supply Co., 320 S.W.3d 777, 785 n.3 (Tenn.
2010) (noting that even opinions of federal intermediate courts are “only persuasive authority
and not binding” on Tennessee state courts); Sneed, 2013 WL 3326133 at *4. Moreover, we
find the facts upon which the district court based its decision in Lee to be highly
distinguishable from the instant action in that constitutional questions of race and gender
discrimination, going beyond an action brought only pursuant to the THRA or TPPA, were
at issue in Lee. Mr. Young’s reliance on Lee is unpersuasive.

       Upon our thorough review of the issue presented and the applicable law, we determine
that the rationale employed in Sneed applies to the instant action as well. The GTLA
provides that “suits must be brought in circuit court without the intervention of a jury.”
Sneed, 2013 WL 3326133 at *4 (citing Tenn. Code Ann. § 29-20-307). The TPPA, like the
THRA, is silent as to whether claims must be tried with or without the intervention of a jury.
See Tenn. Code Ann. 50-1-304; see also Sneed, 2013 WL 3326133 at *4. In the absence of
an express provision to the contrary, we hold that the GTLA applies to claims brought against
a municipality pursuant to the TPPA, thereby requiring the claim to be tried without the
intervention of a jury. Accordingly, we reverse the decision of the trial court.

                                        V. Conclusion

        For the reasons stated above, we reverse the trial court’s denial of LaFollette’s motion
to strike Mr. Young’s jury demand. LaFollette’s motion to strike the jury demand in this




                                              -10-
action is granted. We remand to the trial court for further proceedings without the
intervention of a jury. Costs on appeal are assessed to Mr. Young.




                                              _________________________________
                                              THOMAS R. FRIERSON, II, JUDGE




                                       -11-
