       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                               FILED
                                                                   June 2, 1999

MITCHELL L. DARNALL,                   )                      Cecil Crowson, Jr.
                                       )                     Appellate Court Clerk
      Plaintiff/Appellant,             )
                                       )      Williamson Circuit
VS.                                    )      No. I-95381
                                       )
A+ HOMECARE, INC. and                  )      Appeal No.
JAMES BRADLEY SMITH,                   )      01A01-9807-CV-00347
                                       )
      Defendants/Appellees.            )


                       CONCURRING OPINION


      The court has correctly affirmed the summary judgment dismissing Mr.
Darnall’s Tenn. Code Ann. § 50-1-304 (Supp. 1998) claim. Even though I concur
with the court’s decision, I have prepared this separate opinion to state my
understanding of the elements of a Tenn. Code Ann. § 50-1-304 claim. I find this
restatement necessary because of the Western Section’s reliance on Johnson v. St.
Francis Hosp., Inc., 759 S.W.2d 925 (Tenn. Ct. App. 1988) in Merryman v. Central
Parking Sys., Inc., No. 01A01-9203-CH-00076, 1992 WL 330404 (Tenn. Ct. App.
Nov. 13, 1992) (No Tenn. R. App. P. 11 application filed).


      Prior to the enactment of Tenn. Code Ann. § 50-1-304, the Tennessee Supreme
Court recognized a limited exception to the “employment at will” doctrine for certain
types of retaliatory discharges. See Chism v. Mid-South Milling Co., 762 S.W.2d 552
(Tenn. 1988); Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn. 1984). In 1988, the
Western Section panel of this court held that there were four elements to a common-
law retaliatory discharge claim and that the fourth element was that there must be “an
exclusive causal relationship between the plaintiff’s actions and the defendant’s
actions.” Johnson v. St. Francis Hosp., Inc., 759 S.W.2d at 928.
       Several years later, a Middle Section panel of this court questioned whether the
Western Section’s formulation of the fourth element of the retaliatory discharge cause
of action was consistent with the "substantial factor" formulation in Chism v. Mid-
South Milling Co. See Anderson v. Standard Register Co., No. 01A01-9102-CV-
00035, 1992 WL 63421, at *5-6 (Tenn. Ct. App. Apr. 1, 1992), perm. app. granted
(Tenn. June 29, 1992). When it reviewed the case, the Tennessee Supreme Court
revisited the elements of retaliatory discharge claims involving employees who had
been discharged after seeking workers’ compensation benefits. The Court adhered
to the "substantial factor" formulation in Chism v. Mid-South Milling Co. and held
that the fourth element was that “the claim for workers’ compensation benefits was
a substantial factor in the employer’s motivation to terminate the employee’s
employment.” Anderson v. Standard Register Co., 857 S.W.2d 555, 558 (Tenn.
1993).


       The Tennessee Supreme Court’s “substantial factor” formulation was more
favorable to employees than the Western Section’s “exclusive causal relationship”
formulation. Thus, the legal effect of Anderson v. Standard Register Co. was to
reverse the formulation of the fourth element of common-law retaliatory discharge
causes of action in Johnson v. St. Francis Hosp., Inc. and to replace it with the
“substantial factor” formulation in Anderson v. Standard Register Co. for all
recognized common-law retaliatory discharge causes of action.


         Even as the Tennessee Supreme Court recognized a common-law cause of
action for retaliatory discharge, it expressed reluctance about establishing
Tennessee’s public policy in this area. See Watson v. Cleveland Chair Co., 789
S.W.2d 538, 544 (Tenn. 1989). The Tennessee General Assembly responded by
enacting the Public Protection Act of 19901 which codified the cause of action for
retaliatory discharge. The General Assembly did not explicitly spell out the elements
of the new statutory cause of action in Tenn. Code Ann. § 50-1-304. While the
legislative history indicates that the statute embodies the first three judicially
formulated elements of the cause of action, the language of the statute indicates that



       1
       See Act of March 29, 1990, ch. 771, 1990 Tenn. Pub. Acts 256, codified as amended at
Tenn. Code Ann. § 50-1-304 (Supp. 1998)

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the General Assembly departed from the fourth element - the “substantial factor”
element - originally adopted in Chism v. Mid-South Milling Co.


      Tenn. Code Ann. § 50-1-304(a) states that “[n]o employee shall be discharged
or terminated solely for refusing to participate in, or for refusing to remain silent
about, illegal activities.” 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 about illegal
activities was the only reason for the termination. If the employer can articulate any
other reason for the termination, the employee’s claim will fail. Thus, the statutory
standard in Tenn. Code Ann. § 50-1-304 is more deferential to the employer than the
“substantial factor” standard adopted by the Tennessee Supreme Court in Chism v.
Mid-South Milling Co. and Anderson v. Standard Register Co.


      On this court’s first occasion to discuss the elements of a cause of action under
Tenn. Code Ann. § 50-1-304, a Western Section panel held that the four elements of
a claim under Tenn. Code Ann. § 50-1-304 were the same as the four elements that
had been adopted in Johnson v. St. Francis Hosp., Inc. Thus, the panel stated that the
fourth element of a Tenn. Code Ann. § 50-1-304 claim was that there must be “an
exclusive causal relationship between the plaintiff’s refusal to participate in or to
remain silent about illegal activities and the employer’s termination of the employee.”
See Merryman v. Central Parking Sys., Inc., 1992 WL 330404, at * 6.


      The Western Section’s return to its “exclusive causal relationship” formulation
for the fourth element of claims under Tenn. Code Ann. § 50-1-304 is an unwarranted
departure from the statutory text. Because we must enforce plain and unambiguous
statutory language as written, see Hawks v. City of Westmoreland, 960 S.W.2d 10, 16
(Tenn. 1997), I would hold that the fourth element of a Tenn. Code Ann. § 50-1-304
claim is that the employee was discharged solely for refusing to participate in or to
remain silent about illegal activities. Thus, as I understand them, the four elements
of a cause of action under Tenn. Code Ann. § 50-1-304 are as follows:


      (1)    the plaintiff must be an employee of the defendant;



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      (2)    the plaintiff must have refused to participate in or to
             remain silent about illegal activities attributable to the
             defendant;

      (3)    the defendant must have discharged the plaintiff; and

      (4)    the defendant must have discharged the plaintiff solely for
             the plaintiff’s refusal to participate in or to remain silent
             about illegal activities attributable to the defendant.

      One might argue that Merryman’s “exclusive causal relationship” formulation
is the functional equivalent of the language of Tenn. Code Ann. § 50-1-304(a).
However, adopting the exact language of the statute is more faithful to the statutory
text. It will also avoid future pointless litigation over whether there is a difference
between establishing that an employee was discharged “solely for refusing to
participate in, or for refusing to remain silent about, illegal activity” and that there is
an”exclusive causal relationship” between the employee’s discharge and his or her
refusal to participate in or remain silent about illegal activities.


       A party may obtain a summary judgment by affirmatively demonstrating that
the nonmoving party will be unable to prove an essential element of its case. See
Byrd v. Hall, 847 S.W.2d 208, 213 (Tenn. 1993); Brenner v. Textron Aerostructures,
874 S.W.2d 579, 584 (Tenn. Ct. App. 1993). In this case, A+ Homecare, Inc. has
presented evidence concerning Mr. Darnall's conduct, other than his discussion with
the outside auditors, that would warrant his termination. Accordingly, A+ Homecare
has demonstrated that Mr. Darnall will be unable to prove an essential element of his
case -- that he was terminated solely because he discussed the company's financial
transactions with the outside auditors.


                                          ____________________________
                                          WILLIAM C. KOCH, JR., JUDGE




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