                                                                                        03/23/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                              December 6, 2017 Session

                 JOSEPH SWEAT V. CITY OF MCMINNVILLE

                 Appeal from the Circuit Court for Warren County
                     No. 254     Larry B. Stanley, Jr., Judge


                            No. M2017-01141-COA-R3-CV


The plaintiff, a former firefighter with the City of McMinnville Fire Department, brought
this retaliatory discharge claim against his previous employer under the Tennessee Public
Protection Act. The City filed a motion for summary judgment arguing that the plaintiff
was unable to prove that the City’s proffered reason for the discharge was pretextual.
Finding no genuine dispute, the trial court granted the motion and dismissed the
complaint. We affirm.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.

Todd G. Cole and Shea T. Hasenauer, Brentwood, Tennessee, for the appellant, Joseph
Sweat.

Rachel M. Casias, Nashville, Tennessee, for the appellee, City of McMinnville,
Tennessee.

                                       OPINION

        On June 20, 2001, the City of McMinnville (“the City”) hired Joseph Sweat
(“Plaintiff”) as a firefighter. In December 2013, Plaintiff, along with twenty-seven other
firefighters, signed and presented a document to the McMinnville Human Resources
Director outlining safety concerns in regard to the actions of Fire Chief Keith Martin
(“Chief Martin”). Plaintiff also individually sent a handwritten letter detailing six
complaints to the same Human Resources Director. This information was forwarded to
Tennessee Municipal Fire Consultant, Dennis Wolfe, who conducted an investigation of
the firefighters’ concerns.
        At the conclusion of his investigation, Mr. Wolfe determined that many of the
firefighters’ complaints did not rise to the level of safety violations. Furthermore, he did
not find any evidence of illegal activity. He did, however, identify several safety
concerns, such as deficiencies in operating procedures and training that were not
addressed by the firefighters. Mr. Wolfe also identified issues with camaraderie within
the fire department stemming from a poor working relationship between the firefighters
and Chief Martin. Mr. Wolfe presented the findings of his report to City Alderman Mike
Neal. After receiving this report, Mr. Neal engaged in a reorganization of the fire
department that included terminating the employment of both Chief Martin and Plaintiff
on March 20, 2014. Police Chief Bryan Denton (“Chief Denton”) was then hired as the
interim Fire Chief, a position he had held on three prior occasions.

       Plaintiff filed a complaint against the City on February 13, 2015, in Warren
County Circuit Court, alleging he was discharged in a retaliatory manner in violation of
the Tennessee Public Protection Act (“TPPA”), also known as the Whistleblower Act.
Upon the conclusion of discovery, Plaintiff filed a motion for summary judgment on
December 8, 2016, arguing he established a prima facie case of retaliatory discharge
under the TPPA. Specifically, he contended that he complained about safety issues that
violated the law and that he was fired solely because he refused to participate in, or
remain silent about, those illegal activities. On April 13, 2017, the trial court denied
Plaintiff’s motion for summary judgment, finding that genuine issues of material facts
existed.

       In the interim, the City filed its motion for summary judgment on January 5, 2017.
The City argued that it terminated Plaintiff for reasons other than Plaintiff’s complaints;
specifically, Plaintiff’s inability to work with effective leadership, for making sexually
harassing phone calls from the firehouse to a private citizen, and going outside the chain
of command. The City also asserted that Plaintiff was unable to show that any of these
proffered reasons were pretextual. On May 9, 2017, the trial court granted the City’s
motion for summary judgment, finding “Plaintiff has failed to establish that the City’s
explanation of his discharge is pretextual or unfounded. There are no genuine issues as to
any material facts, therefore, the Defendant (City) is entitled to summary judgment.”

           Plaintiff then timely appealed.

                                                      ISSUES

       The dispositive issue presented for our review is whether Plaintiff was terminated
solely for engaging in activity protected under the TPPA.1 Plaintiff argues that he was

1
    Plaintiff raised the following issues in his brief:

                                                                              (continued…)
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terminated solely because he refused to participate in, or remain silent about illegal
activities. In response, The City argues that Plaintiff was fired because of his history of
work-related misconduct and insubordination that adversely affected employee morale.

                                        STANDARD OF REVIEW

       This court reviews a trial court’s decision on a motion for summary judgment de
novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997)). Accordingly, this court must make a fresh determination of whether the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.; Hunter v. Brown, 955
S.W.2d 49, 50-51 (Tenn. 1997). In so doing, we consider the evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in that party’s
favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).

        Summary judgment should be granted when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for
summary judgment does not bear the burden of proof at trial, it may satisfy its burden of
production “either (1) by affirmatively negating an essential element of the nonmoving
party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the
summary judgment stage is insufficient to establish the nonmoving party’s claim or
defense.” Rye, 477 S.W.3d at 264 (emphasis in original).

       When a motion for summary judgment is made and supported as provided in
Tenn. R. Civ. P. 56, the nonmoving party may not rest on the allegations or denials in its
pleadings. Id. Instead, the nonmoving party must respond with specific facts showing that

        I. Under Tenn. R. Civ. P. 56.04, should the Circuit Court’s grant of Appellee’s Motion
        for Summary Judgment be reversed because there was a genuine issue of material fact as
        to the Appellant’s Tennessee Public Protection Act (“TPPA”) claim?

          A. Could a reasonable trier of fact find that the Appellant refused to participate in or
          remain silent about illegal activity?
          B. Could a reasonable trier of fact find that the Appellee terminated the Appellant’s
          employment solely because the Appellant refused to participate in or remain silent
          about the illegal activity?

The City asserts the only issue is as follows:

        I. Under Tenn. R. Civ. P. 56.04, should the Circuit Court’s grant of the Appellee’s
        Motion for Summary Judgment be upheld because there was not a genuine issue of
        material facts as to the Appellant’s Tennessee Public Protection Act (“TPPA”) claim.


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there is a genuine issue for trial. Id. A fact is material “if it must be decided in order to
resolve the substantive claim or defense at which the motion is directed.” Byrd v. Hall,
847 S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury could
legitimately resolve that fact in favor of one side or the other.” Id.

                                          ANALYSIS

                          I. TENNESSEE PUBLIC PROTECTION ACT

       The TPPA 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.

       (c)(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, subject to the limitations
       set out in Tenn. Code Ann. § 4-21-313.

Tenn. Code Ann. § 50-1-304 (b)-(c)(1) (emphasis added).

        A claim under the TPPA differs from a common-law retaliatory discharge claim in
two respects. First, the common-law cause of action is only available to private-sector
employees, whereas the TPPA also extends protection to public employees. Williams v.
City of Burns, 465 S.W.3d 96, 110 (Tenn. 2015) (citing Guy v. Mut. of Omaha Ins. Co.,
79 S.W.3d 528, 537 (Tenn. 2002)). Second, the TPPA places a higher burden on the
plaintiff. Under the common law, a plaintiff is only required to show that retaliation for
protected conduct was a “substantial factor” motivating the termination of the plaintiff’s
employment. Id. To prevail under the TPPA, the plaintiff must prove that retaliation for
engaging in protected conduct was the “sole reason” behind the employer’s decision to
terminate the plaintiff. Id.

       A plaintiff asserting a claim under the TPPA must prove four elements:

       (1) the plaintiff was an employee of the defendant;
       (2) the plaintiff refused to participate in or remain silent about illegal
       activity;
       (3) the defendant employer discharged or terminated the plaintiff’s
       employment; and
       (4) the defendant terminated the plaintiff’s employment solely for the
       plaintiff’s refusal to participate in or remain silent about the illegal activity.



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Id. at 111 (Tenn. 2015) (citing Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 26-27
(Tenn. 2011)).

       These essential elements are assessed under the statutory burden-shifting
framework provided by the TPPA “to be applied to all claims under the TPPA, both for
summary judgment motions and for trial.”2 Williams, 465 S.W.3d at 112 n.15 (citing
2011 Tenn. Pub. Acts ch. 461). Tenn. Code Ann. § 50-1-304(f) calls for a three pronged
analysis, which we summarize as follows:

       (1) First, the plaintiff has the burden of establishing a prima facie case of
       retaliatory discharge by a preponderance of the evidence;

       (2) If the plaintiff establishes a prima facie case for retaliatory discharge, the
       defendant must produce evidence of one or more legitimate, non-retaliatory
       reasons for the discharge. This is a burden of production, not persuasion;

       (3) If the defendant produces evidence of a non-retaliatory reason for the
       discharge, the plaintiff’s prima facie case is rebutted, and the burden shifts to the
       plaintiff to demonstrate that the reason given by the defendant was only pretext for
       unlawful retaliation.

     This statutory burden-shifting framework is “virtually indistinguishable from the
McDonnell Douglas/Burdine [burden-shifting framework].” Williams, 465 S.W.3d at 112

       2
          Our Supreme Court in Williams v. City of Burns, 465 S.W.3d 96, 112 n.15 (Tenn. 2015) states
that “[i]n 2011, the Legislature amended Section 50–1–304 to add a subsection (g), that set forth a
statutory burden-shifting framework to be applied to all claims under the TPPA, both for summary
judgment motions and for trial. 2011 Tenn. Pub. Acts ch. 461 (enacted, effective June 10, 2011).” The
footnote goes on to read:

       The statute was amended in response to this Court’s decision in Gossett v. Tractor Supply
       Co., 320 S.W.3d 777, 785 (Tenn. 2010) (holding that “the McDonnell Douglas burden-
       shifting framework is inapplicable at the summary judgment stage because it is
       incompatible with Tennessee summary judgment jurisprudence” set out in Hannan v.
       Alltel Pub’g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008)). In the second appeal in this case,
       following the trial, the Court of Appeals indicated that the statutory framework found in
       the amended TPPA applied at trial in this case. Williams, 2013 WL 4068180, at *2. This
       was error, because Captain Williams’ claim arose well before the 2011 effective date of
       the amendment. However, because the analytical framework set forth in the amended
       TPPA is virtually indistinguishable from the McDonnell Douglas/ Burdine approach, the
       Court of Appeals’ error made no real difference in the analysis. We note that Gossett
       changed only the standard applicable to summary judgment motions, not the analytical
       framework to be applied at trial. Gossett, 320 S.W.3d at 785.

Williams, 465 S.W.3d at 112 n.15.


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n.15. However, the second prong of the framework must be “refined” when applied to a
claim under the TPPA. See id. at 115. Under the TPPA, if the plaintiff succeeds in
establishing a prima facie case of retaliatory discharge, the defendant need not proffer
evidence that unlawful retaliation played no part in its decision to terminate the plaintiff.
Id. Rather, the defendant need only produce “admissible evidence showing that unlawful
retaliation was not the sole cause of the employment action.” Id. (emphasis in original).
Further, the defendant’s proffered non-retaliatory reason for the discharge “need not be a
sound one; it need only be a reason other than retaliation.” Id. at 115 (emphasis in
original). At all times, the plaintiff bears the ultimate “burden of persuading the trier of
fact that the plaintiff has been the victim of unlawful retaliation.” Tenn. Code Ann. § 50-
1-304(f).

      II. APPLICATION OF TENNESSEE PUBLIC PROTECTION ACT BURDEN SHIFTING

       Once a plaintiff establishes a prima facie case of retaliatory discharge and a
defendant proffers some legitimate, non-discriminatory reason for the discharge, “the
[TPPA] burden-shifting framework falls away and the trier of fact is left to determine the
ultimate question of retaliation.” Williams, 465 S.W.3d at 118 (quoting Gibson v. City of
Louisville, 336 F.3d 511, 513 (6th Cir. 2003)) (internal alterations omitted). “The
question is not whether the employer’s decision was sound, but whether the employer’s
asserted reason for the adverse employment decision is pretextual.” Id. at 119 (quoting
Versa v. Policy Studies, Inc., 45 S.W.3d 575, 581 (Tenn. Ct. App. 2000)). “Pretext is
typically shown in one of three ways: (1) by establishing that the employer’s proffered
reasons have no basis in fact, (2) by establishing that the proffered reasons did not
actually motivate the discharge, or (3) by establishing that they were insufficient to
motivate the discharge.” Id. In other words, to establish pretext, an employee must show
that “the employer lied about the reason it gave for terminating the plaintiff’s
employment, in order to mask its true retaliatory motive.” Id.

      Here, the trial court relied on Versa v. Policy Studies, Inc., to hold that Plaintiff
could not meet his burden of establishing that the City’s proffered reasons for his
termination were pretextual. The trial court’s order, in relevant part, reads:

        The Plaintiff must produce evidence that the [defendant] lied about its
        proffered reasons for dismissal. In this matter there were twenty-six other
        firefighters who reported the same issues that the Plaintiff did concerning
        the fire chief and were not terminated. The City contends that Plaintiff was
        terminated because of several issues including: the Plaintiff’s inability to
        work with effective leadership, for making sexual harassing phone calls
        from the firehouse to a private citizen, and going outside the chain of
        command. The Plaintiff has several written reprimands for violating City
        policy.


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        Plaintiff argues that the trial court erred in its grant of summary judgment because
there is a genuine issue of material fact as to whether the City’s proffered reasons for
terminating Plaintiff’s employment were pretextual. Plaintiff supports his argument with
three key facts: the City had previously given Plaintiff awards commending his job
performance; the temporal proximity between when he filed complaints against Chief
Martin and when he was terminated; and Plaintiff submitted a handwritten letter detailing
six complaints, in addition to the complaint signed by twenty-seven other firefighters.
Collectively, Plaintiff argues that these facts show that a genuine issue of material fact
exists as to whether the City’s proffered reasons for his termination were pretextual.
Conversely, the City contends there are no genuine issues of material fact and Plaintiff
failed to show that a reasonable trier of fact could determine the City’s proffered reasons
for his discharge (1) have no basis in fact, (2) did not motive Plaintiff’s discharge, or (3)
were not sufficient to motivate Plaintiff’s discharge. Accordingly, we will analyze each
factor.

                                     A. Factual Basis for Termination

       An employer’s proffered reasons have no basis in fact when the decision to
terminate the employee was based on facts that were not true. Williams, 465 S.W.3d at
119 (citing Versa, 45 S.W.3d at 581).

       In his deposition, Plaintiff admitted to calling the McMinnville 911 center in 2011
to complain about the city’s policies for dispatching emergency services. Plaintiff does
not dispute that he received a reprimand from Chief Denton, interim fire chief at the time,
for violating policy by going outside the chain of command. Rather, Plaintiff contends
that the reprimand was only a “coaching session” and not a violation of policy.
Regardless of his interpretation of the “session,” Plaintiff testified that he did receive a
reprimand and that he signed it.

        Plaintiff additionally admitted to making a phone call from the fire house to a
woman whose name and phone number he had gotten off the internet. Chief Denton
testified that Plaintiff had made phone calls from the fire house to a woman. Chief
Denton further testified that the phone calls were inappropriate and ironically, were calls
made to his nephew’s girlfriend. Chief Denton, who was serving as Chief of Police at the
time, stated that he called the current fire chief, who agreed to handle the situation.3
Although Plaintiff never acknowledged that he made sexually harassing phone calls, he
admitted in his deposition that at one time, firefighters kept a “list on the desk of the fire
station” containing the names of single women that they had gotten off the internet, and
that he called one of these women “to talk.” Furthermore, Plaintiff testified,

          3
              It appears Chief Denton talked to Chief Lawrence, but this fact is not entirely clear from the
record.


                                                     -7-
       Chief Lawrence called me into his office and asked if I had made a phone
       call to a woman who had called in and said that somebody had called her.
       And from my perspective at the time, there were some guys, and I don’t
       know who they were, but they were getting online or getting singles or
       names of women online somehow.

       And they had left a list there on the desk at the fire station, and I was
       wrong. I -- I called a person. I called her and -- and I don’t know if this was
       me because like I said, others were calling and the chief didn’t know who
       was calling. He was guessing. So this could have been me that made that
       phone call to that woman, but it was, you know, to talk and she didn’t want
       to talk. So I politely excused myself, but if it was her, she called the chief.

       And I know I wrote I’m innocent here, but I could have been guilty.

        Plaintiff puts forth no evidence to establish that either incident did not occur or
that either was “based on facts that [were] not true.” Williams, 465 S.W.3d at 119.

                           B. Reasons for Plaintiff’s Discharge

       To show that the employer’s proffered reasons did not motivate the discharge, an
employee may “either produce evidence that the adverse employment decision was more
likely motivated by retaliation or ‘show that the employer’s explanation is not credible.’”
Williams, 465 S.W.3d at 119 (quoting Versa, 45 S.W.3d at 581).

       To challenge the City’s assertion that Plaintiff was terminated for prior
misconduct and insubordination, Plaintiff points to the fact that he was the valedictorian
of his Recruit-Firefighter I Class and received the Firefighter of the Year award in 2009,
among other accomplishments. He also argues that the City’s proffered reasons are
pretext because the misconduct and insubordinate behavior alleged by the City occurred
years prior to Plaintiff’s termination, whereas Plaintiff’s protected activity occurred
approximately three months before his termination. The City responded to these
conclusory allegations with the following facts.

        In Alderman Neal’s deposition, he testified that before Chief Martin was
terminated, Chief Martin provided a list of potential firefighters he believed should be
fired. Alderman Neal conducted an investigation into the names Chief Martin provided
and after consulting with Chief Denton and Human Resources Administrator Jennifer
Rigsby, Alderman Neal made the determination to terminate Plaintiff and one other
firefighter. Notably, the other twenty-six firemen who signed the petition along with
Plaintiff were not fired.


                                            -8-
       Both Chief Denton and Ms. Rigsby testified that they supported Plaintiff’s
termination as a way of improving morale in the fire department. They both also provided
reasons unrelated to Plaintiff’s protected activity to support his termination. Moreover,
during his previous tenure as interim fire chief, Chief Denton had counseled Plaintiff for
going outside the chain of command. Chief Denton stated that he had also been informed
by other firefighters that Plaintiff conducted himself in an unprofessional manner in
public. Ms. Rigby testified that she supported Plaintiff’s termination because of his work-
related misconduct and unprofessional behavior that she became aware of in her capacity
as the McMinnville Human Resources Coordinator.

       Alderman Neal, Chief Denton, and Ms. Rigsby provided detailed reasons for
Plaintiff’s termination, all of which were unrelated to activity protected by the TPPA, and
Plaintiff has failed to establish that the testimony of Alderman Neal, Chief Denton, and
Ms. Rigsby “[was] not credible” or that their decision to terminate Plaintiff was “more
likely motivated by retaliation.” Williams, 465 S.W.3d at 119.

                   C. Sufficiency of Reasons for Plaintiff’s Discharge

        To show that an employer’s proffered reason for an employee’s discharge is
insufficient, “the employee must produce evidence that other employees who engaged in
substantially the same non-protected conduct were not fired.” Williams, 465 S.W.3d at
119. Plaintiff argues that he is uniquely situated because he submitted a handwritten letter
detailing six complaints in addition to the complaint submitted by twenty-eight
firefighters. This argument is misplaced because the focus in this prong of the TPPA
pretext analysis is on non-protected conduct. The non-protected work-related conduct
Plaintiff engaged in was, inter alia, repeatedly going outside of the chain of command,
unprofessional conduct in public, and adversely affecting employee morale. Significantly,
Plaintiff has failed to produce evidence that other firefighters who engaged in similar
work-related misconduct were not terminated. See id. Therefore, Plaintiff has not
established that “other employees who engaged in substantially the same non-protected
conduct were not fired.” Id. In fact, of the twenty-eight firefighters who complained to
the McMinnville City Council about Chief Martin, only Plaintiff and one other were
terminated. Significantly, the other firefighter who was terminated also had a history of
work-related misconduct and insubordination.

       Finally, unlike a traditional case under the TPPA, where an employee files a
complaint against a supervisor and is terminated, while the supervisor remains employed,
the City terminated both Plaintiff and Chief Martin. This provides further proof that
Plaintiff’s termination was not retaliatory, but was rather an effort by the City of
McMinnville to improve the morale and functioning of its fire department.




                                            -9-
      In weighing the evidence in the light most favorable to Plaintiff, we conclude that
no reasonable trier of fact could find that Plaintiff’s protected activity under the TPPA
was the sole reason for his discharge.

                                    IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against appellant.


                                                   ________________________________
                                                   FRANK G. CLEMENT JR., P.J., M.S.




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