                   IN THE SUPREME COURT OF TENNESSEE
                              AT KNOXVILLE
                                   May 11, 2011 Session

       DR. WILLIAM P. HARMAN v. UNIVERSITY OF TENNESSEE

          Appeal by Permission from the Court of Appeals, Western Section
                       Chancery Court for Hamilton County
                   No. 08-0698    Howell N. Peoples, Chancellor


                No. E2009-02139-SC-R11-CV - Filed September 16, 2011


J ANICE M. H OLDER, J., dissenting.

       I respectfully dissent from the conclusion of a majority of this Court that the plaintiff’s
pleadings are insufficient to withstand a motion for judgment on the pleadings as to the
element of termination.

       A trial court must consider a motion for judgment on the pleadings for failure to state
a claim in a manner similar to consideration of a motion to dismiss for failure to state a claim.
Timmins v. Lindsey, 310 S.W.3d 834, 838 (Tenn. Ct. App. 2009); Cf. Satterfield v. Breeding
Insulation Co., 266 S.W.3d 347, 375 (Tenn. 2008). When a defendant files a motion to
dismiss for failure to state a claim, the issue is whether the complaint is legally sufficient.
Webb v. Nashville Area Habitat for Humanity, Inc., ___ S.W.3d ___, ___, 2011 WL
2905584, at *2 (Tenn. 2011).

       A Tennessee Public Protection Act claim requires the plaintiff to allege that he was
discharged or terminated. Tenn. Code Ann. § 50-1-304(b) (Supp. 2010). Dr. Harman’s
complaint satisfies this statutory requirement by alleging that he was terminated as
Department Head. Paragraph 17 of the complaint states:

       Plaintiff refused to resign or to remain silent regarding Welsh’s academic
       fraud. Plaintiff was then informed that he would be terminated as Department
       Head at the end of the academic year. This termination was based on
       Plaintiff’s refusal to alter official documents or remain silent as to the
       academic fraud and professional malfeasance which was perpetrated on the
       University and the citizens of the State of Tennessee.
(Emphasis added.). In its answer, UT Chattanooga admitted that the second sentence of this
allegation is true.

        The majority opinion expends considerable effort in construction of the language of
the statute and in distinguishing “demotion” and “discrimination” from “termination.” The
majority opinion then affirms the dismissal of the complaint by characterizing the change in
Dr. Harman’s terms of employment as a demotion or discrimination rather than as the
termination he alleges. The majority reaches this conclusion on the basis that Dr. Harman
remains employed as a tenured university professor after being terminated as the Department
Head.

       By characterizing the change of employment status of Dr. Harman as a “demotion,”
the majority has made a factual determination based on facts not contained in the pleadings.
A judgment on the pleadings is restricted to allegations in the pleadings alone. Cf.
Highwoods Properties, Inc. v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009).
Moreover, in reviewing the allegations contained in the pleadings, a court must consider the
allegations in a light most favorable to the non-moving party. McClenahan v. Cooley, 806
S.W.2d 767, 769 (Tenn. 1991); see Satterfield, 266 S.W.3d at 352 & n. 1. In this case, Dr.
Harman alleged, and the defendant admitted, that Dr. Harman was told he would be
“terminated as Department Head.”

       Dr. Harman’s case ultimately may not succeed at trial or even survive a motion for
summary judgment. In the face of a motion for judgment on the pleadings for failure to state
a claim, however, the strength and likely success of a plaintiff’s claim is not our concern.
Highwoods Properties, Inc., 297 S.W.3d at 700. We need consider only whether the
allegations in the complaint are sufficient to allege a cause of action. Dr. Harman has alleged
that he was terminated as Department Head and the defendant has admitted this fact. The
complaint therefore is sufficient to allege termination.1

        I respectfully dissent.




                                                        _________________________________
                                                        JANICE M. HOLDER, JUSTICE


       1
          Because the majority has determined that termination did not occur, it does not address the
requirement that the plaintiff allege that he was terminated for refusing to remain silent about illegal
activities.


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