                                                                                        05/08/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                      March 5, 2019 Session

   CHRIS WHITNEY v. FIRST CALL AMBULANCE SERVICE, ET AL.

                    Appeal from the Circuit Court for Davidson County
                        No. 15C1241 Thomas W. Brothers, Judge
                        ___________________________________

                               No. M2018-01155-COA-R3-CV
                           ___________________________________

This is an appeal from the trial court’s grant of summary judgment dismissing a plaintiff-
employee’s THRA and TPPA claims against his employer. As to the employee’s THRA
claim, the trial court found that the evidence of harassment and discriminatory conduct
was not so severe or pervasive so as to establish a hostile work environment. As to the
employee’s TPPA claim, the trial court found that the employer had a valid, non-
discriminatory reason for termination. Additionally, the trial court found that the
employee failed to establish that one of the entities was his employer for purpose of
liability under either the THRA or the TPPA. Finding that the employee presented
sufficient evidence to raise a genuine issue of disputed material fact with regard to his
THRA and TPPA claims, we vacate the trial court’s order as to these claims and remand
the case to the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated in
                               part and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

R. Patrick Parker and Abigail M. Strader, Gallatin, Tennessee, for the appellant, Chris
Whitney.

First Call Ambulance Service, LLC, Appellee1




      1
          No brief was filed on behalf of Appellee First Call Ambulance Service, LLC.
                                       OPINION

                      BACKGROUND AND PROCEDURAL HISTORY

       In January 2011, First Call Ambulance Services (“First Call”) hired Chris Whitney
(“Plaintiff”) as the ambulance fleet manager for the company’s Tennessee and Virginia
regions. Later that same year, First Call was acquired by EDG Partners, LLC (“EDG”).
As fleet manager, Plaintiff performed maintenance on the ambulance fleets and ensured
that enough ambulances were available for the daily schedule. Throughout his
employment, Plaintiff made several complaints to members of First Call’s upper-level
management as well as state regulators regarding the company’s failure to adhere to the
relevant safety rules and regulations promulgated by the State of Tennessee. On one
occasion, Plaintiff told Mike Ross, First Call’s CEO, that he “was going to tell the truth”
about First Call’s violations. In response, Mr. Ross assaulted Plaintiff. According to
First Call’s Human Resources Manager, Nina Mothershed, Mr. Ross struck Plaintiff in
the face and grabbed him by the throat. On February 10, 2015, Plaintiff was terminated
from his employment with First Call.

        On March 31, 2015, Plaintiff filed a complaint in the Davidson County Circuit
Court (the “trial court”) against First Call and EDG (together, “Defendants”), alleging
violations of the Tennessee Public Protection Act (“TPPA”) and the Tennessee Human
Rights Act (“THRA”). As to his TPPA claim, Plaintiff complained that he suffered
continuous harassment and retaliation after he notified Defendants of safety violations
regarding the ambulance fleets he oversaw. As to his THRA claim, Plaintiff complained
that Defendants engaged in and condoned harassment and discriminatory conduct such
that it created a hostile work environment. On May 7, 2015, EDG moved to dismiss
Plaintiff’s complaint, which the trial court denied on June 26, 2015.

       On December 13, 2017, Defendants together moved for summary judgment as to
both claims for relief. As to Plaintiff’s THRA claim, Defendants argued that Plaintiff
could not establish a hostile work environment existed because he made jokes about his
race himself. Moreover, Defendants argued that it is undisputed that Plaintiff failed to
report any alleged harassment or discriminatory conduct, despite the existence of clear
reporting policies. As to Plaintiff’s TPPA claim, Defendants argued that Plaintiff could
not show that he engaged in any protected activity and that, even if he could, he could not
establish an exclusive causal connection between any alleged protected activity and his
termination. In support of this argument, Defendants argued that they had multiple
legitimate and non-retaliatory reasons for terminating Plaintiff. Defendants further
averred that an independent consulting firm that they had retained had notified them in a
report (the “Solstice Report”) of a variety of issues concerning Plaintiff’s performance as
fleet manager for First Call. Lastly, EDG argued that it was entitled to summary
judgment on the additional basis that it was not Plaintiff’s employer—which is a
necessary precondition to liability under the THRA and TPPA.
                                            -2-
       In his response to the Defendants’ motion for summary judgment, Plaintiff argued
that he was an employee of both First Call and EDG and that he had made numerous
complaints to management about ambulance units being operated in violation of state
regulations. Additionally, Plaintiff argued that the Solstice Report on which Defendants
relied for his termination was misleading and not worthy of belief. Nevertheless, on
February 16, 2018, the trial court granted Defendants’ motion for summary judgment. In
its order, the trial court found that Plaintiff failed to establish that EDG was either a joint
employer or single employer with First Call. As to Plaintiff’s THRA claim, the trial
court found that the evidence of harassment and discriminatory conduct offered by
Plaintiff occurred over a period of 4 years and was, therefore, insufficient to establish a
hostile work environment. As to Plaintiff’s TPPA claim, the trial court found that
Plaintiff failed to present evidence raising a genuine issue of material fact regarding First
Call’s reliance on the Solstice Report in reaching its decision to terminate Plaintiff.
Plaintiff timely appealed on June 21, 2018. Plaintiff, however, did not pursue his claims
against EDG on appeal.

                                     ISSUE PRESENTED

       As we perceive it, Plaintiff raises one issue on appeal: whether the trial court erred
in granting Defendants’ motion for summary judgment as to First Call.

                                  STANDARD OF REVIEW

        “Summary judgment is appropriate 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.’” Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 250 (Tenn. 2015) (quoting Tenn. R. Civ. P. 56.04). Further:

       [W]hen the moving party does not bear the burden of proof at trial, the
       moving party 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.

Id. at 264. When a properly supported motion is made, “the nonmoving party may not
rest upon the mere allegations or denial of [its] pleading, but must respond, and by
affidavits or one of the other means provided in [Tennessee Rule of Civil Procedure 56],
set forth specific facts at the summary judgment stage showing that there is a genuine
issue for trial.” Id. at 265 (internal quotations omitted).


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       “We review a trial court’s ruling on a motion for summary judgment de novo,
without a presumption of correctness.” Id. at 250. “In doing so, we make a fresh
determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied.” Id. We view all of the evidence in the light most
favorable to the nonmoving party and resolve all factual inferences in the nonmoving
party’s favor. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008).

                                       DISCUSSION

       As is relevant to this appeal, in granting Defendants’ motion for summary
judgment, the trial found that Plaintiff failed to raise genuine issues of material fact with
respect to his THRA and TPPA claims against First Call. We address each in turn.

                                       THRA Claim

       The stated intent and purpose of the THRA is to provide for the execution of
policies within Tennessee that are consistent with the Federal Civil Rights Acts of 1964,
1968, and 1972, including, as relevant here, the prohibition of discrimination in
employment. See Tenn. Code Ann. § 4-21-101(a)(1). Both the Federal and State Acts
apply to claims of discrimination based upon the existence of a hostile work environment.
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); Campbell v. Florida Steel
Corp., 919 S.W.2d 26, 31 (Tenn. 1996) (hereinafter, “Campbell II”). As this Court has
noted, to prevail in a hostile work environment claim based on race, the plaintiff must
prove four factors:

       (1) membership in a protected class; (2) racially motivated conduct that
       constituted an unreasonably abusive or offensive work-related environment
       or which adversely affected the reasonable employee’s ability to do his or
       her job; (3) the employer knew or should have known of the harassment;
       and (4) the employer failed to respond with prompt and appropriate
       corrective action.

Freeman v. Lewisburg Hous. Auth., M2006-01898-COA-R3-CV, 2008 WL 360607, at *5
(Tenn. Ct. App. Feb. 8, 2008) (citing Campbell II, 919 S.W.2d at 31-32). Further, a
hostile work environment claim is established upon proof of conduct that is “sufficiently
severe or pervasive to alter the conditions of [the victim’s] employment and create an
abusive working environment.” Vinson, 477 U.S. at 67 (internal quotation omitted). As
the Tennessee Supreme Court stated in Campbell II,

       [i]n determining whether an environment is hostile or abusive, a court must
       consider the totality of the circumstances. While no single factor is
       required or conclusive, considerations relevant to the determination include,
       but are not limited to, the frequency of the discriminatory conduct; its
                                           -4-
       severity; whether it is physically threatening or humiliating, or a mere
       offensive utterance; whether it unreasonably interferes with an employee’s
       work performance; and the employee’s psychological well-being.

Campbell II, 919 S.W.2d at 32 (internal citations omitted).

       As to Plaintiff’s THRA claim, the trial court found that, while “disgusting and
offensive,” the five alleged utterances offered into evidence by Plaintiff occurred over a
period of four years. Specifically, the trial court found that “the utterances alleged by
Plaintiff were infrequent, not physically threatening, and did not unreasonably interfere
with Plaintiff’s work performance.” We disagree.

       In its order, the trial court listed the five statements offered into evidence by
Plaintiff:

       (1) someone referred to Plaintiff as a “chink”; (2) during a budget meeting,
       other First Call employees told Plaintiff his abacus is “jacked up”; (3)
       someone placed a sign on Plaintiff’s office door that referenced free cats as
       free lunch for Plaintiff; (4) someone stated that Plaintiff should not go out
       while the United States President was in Nashville because Plaintiff looked
       like a terrorist; and (5) someone asked Plaintiff how he would communicate
       with his relatives in North Korea while the internet was down in that
       country.

While the trial court found that these offensive statements were made over a period of
four years, our review of the record reveals that the timing of the statements was that
most of them were made in the last quarter of 2014—just a few months before his
termination. Additionally, we are of the opinion that the trial court failed to fully
appreciate the severity of the harassment and discriminatory conduct alleged by Plaintiff.
While the trial court noted that “someone referred to Plaintiff as a ‘chink,’” this
downplays the fact that Plaintiff alleged the “someone” was actually a person in upper-
level management at First Call and that the full offensive statement was “if I catch the
damn chink out there talking to the state inspector one more time, he’s going to regret it.”
The trial court also found that the statements were not physically threatening and did not
unreasonably interfere with Plaintiff’s work performance, yet the trial court failed to
consider whether the statements were humiliating in nature. Plaintiff alleged that one
member in upper-level management at First Call routinely made humiliating and
embarrassing remarks to Plaintiff regarding his Asian background, such as: “Someone
has cats for sale, maybe that could be dinner for you”; “You better not get out[,] you look
like a terrorist”; and “How are you going to Skype your relatives in North Korea without
the internet.” In light of the foregoing, we conclude that there is a genuine issue of
disputed material fact as to whether the discriminatory conduct alleged by Plaintiff was
sufficiently severe or pervasive to create a hostile working environment. Accordingly,
                                            -5-
we vacate the trial court’s grant of summary judgment to Defendant First Call on this
ground.

                                       TPPA Claim

        The TPPA declares in relevant part that “[n]o employee shall be discharged or
terminated solely for refusing to participate in, or for refusing to remain silent about,
illegal activities.” Tenn. Code Ann. § 50-1-304(a). Any employee terminated in
violation of that part “shall have a cause of action against the employer for retaliatory
discharge.” Id. at § 50-1-304(d)(1). As this Court has noted, to establish a prima facie
case of retaliatory discharge under the statute, the plaintiff must prove four elements: “(1)
his status as an employee; (2) his refusal to participate in, or remain silent about, illegal
activities; (3) the employer’s discharge of the employee; and (4) an exclusive causal
relationship between his refusal to participate in or remain silent about illegal activities
and his termination by the employer.” Freeman, 2008 WL 360607, at *3. An employee
who establishes a prima facie case of retaliatory discharge creates a rebuttable
presumption that the employer unlawfully retaliated against the employee. Jones v. City
of Union City, No. 2013-02358-COA-R3-CV, 2015 WL 9257815, at *6 (Tenn. Ct. App.
Dec. 17, 2015) (citing Williams v. City of Burns, 465 S.W.3d 96, 115 (Tenn. 2015)). The
burden then shifts to the employer to articulate a non-retaliatory reason for the discharge.
Jones, 2015 WL 9257815, at *6. As the Tennessee Supreme Court noted in Williams v.
City of Burns, the “sole causation” element of a TPPA claim has an important impact at
this stage:

       In articulating a non-retaliatory reason for discharging the employee, the
       defendant employer in a TPPA case need not proffer evidence that unlawful
       retaliation was no part of its decision to terminate employment. Rather, the
       employer need only introduce admissible evidence showing that unlawful
       retaliation was not the sole cause of the employment action. That is, the
       employer must proffer evidence that, even if retaliation was a motivation
       for the discharge, there was at least one non-retaliatory reason as well.

Williams, 465 S.W.3d at 115. Once the employer proffers a non-retaliatory reason for the
employee’s discharge, the employee must have a full and fair opportunity to demonstrate
that the employer’s reasons are pretextual and that unlawful retaliation was the true
reason for the challenged employment action. Id. at 118.

       Here, the trial court found that First Call proffered three non-retaliatory reasons
for Plaintiff’s discharge: (1) the Solstice Report detailing concerns regarding Plaintiff’s
conduct and performance in his position; (2) employee complaints about Plaintiff; and (3)
certain personality conflicts between Plaintiff and First Call management. The trial court
addressed each reason as follows:

                                            -6-
       With respect to the personality conflicts and employee complaints, the
       Court finds that Plaintiff has presented sufficient evidence to raise a
       genuine issue of material fact. However, Plaintiff has failed to present
       evidence raising a genuine issue of material fact regarding First Call’s
       legitimate reliance on the independent consultant’s report in reaching its
       decision to terminate Plaintiff’s employment. Plaintiff has not presented
       evidence suggesting that the independent consultant’s report was not a basis
       for his termination, that the report was a sham, or that the report was in
       some way manipulated by First Call.

Accordingly, the trial court concluded that Plaintiff failed to establish that the exclusive
cause of his termination was alleged protected activity under the TPPA.

       Plaintiff, however, argues that a genuine issue of material fact exists as to whether
First Call’s reliance on the Solstice Report was pretextual. This Court has noted that an
employee can demonstrate that an employer’s proffered, non-retaliatory reason for an
adverse employment action is pretextual “by revealing the ‘weaknesses, implausibilities,
inconsistencies, or contradictions’ in the employer’s explanation.” Wilson v. Rubin, 104
S.W.3d 39, 50-51 (Tenn. Ct. App. 2002) (quoting Garrett v. Hewlett-Packard Co., 305
F.3d 1210, 1217 (10th Cir. 2002)). Three of the most common ways to undermine an
employer’s proffered reasons include: (1) establishing that the proffered reasons have no
basis in fact; (2) establishing that the proffered reasons did not actually motivate the
adverse employment action; or (3) establishing that the proffered reasons were
insufficient to motivate the adverse employment action. Wilson, 104 S.W.3d at 51 (citing
Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)).

       Here, Plaintiff proffered evidence alleging that the Solstice Report—as well as
First Call’s reliance on it—was “false, misleading and not worthy of belief, a sham”. For
example, the Solstice Report states that “[Plaintiff’s] decision to extend intervals between
oil changes beyond industry accepted standards was made independent of executive
directive” and was “likely highly detrimental” to the company. In his March 19, 2018
affidavit, however, Plaintiff stated that on multiple occasions he was directed by upper
management of First Call to cease purchasing oil and other maintenance parts due to the
company’s lack of funds. Similarly, the Solstice Report states that Plaintiff, acting on
behalf of First Call, but without a clear directive from upper management, would
purchase chassis and ambulance bodies for on-site remounting and/or spare engine
replacement, ultimately concluding that this was not “strategically sound for business.”
Yet Plaintiff stated that he was under direct orders from upper-level management at First
Call to get the ambulance fleet operational as quickly and cost-effectively as possible.
Moreover, Plaintiff stated that First Call “flew [him] to California and St. Louis for the
purpose [of] looking at more used ambulances and purchasing more cabs and chassis to
perform remounts.”

                                           -7-
       In their statement of undisputed material facts accompanying the motion for
summary judgment, Defendants, relying on the Solstice Report, stated that “First Call’s
fleet maintenance costs per unit for its operations in Tennessee . . . were substantially
higher than the maintenance costs per unit for First Call’s ‘E.M.T.’ division in Ohio,
despite the E.M.T. having an older fleet of ambulances.” However, in his January 19,
2018 affidavit, Plaintiff provided an explanation for why such a comparison was
misleading and inaccurate:

       EMT Ohio had more gas operated vehicles such as cars and vans that were
       used to transport clients than diesel operated ambulances. First Call had far
       more diesel operated ambulances than EMT Ohio. These diesel operated
       ambulances have a much higher per unit maintenance cost than gas
       operated vehicles. Furthermore, we operated our fleet in metropolitan areas
       as opposed to rural areas, such as where Ohio EMT operated, which further
       increased the per unit cost.

Additionally, in the statement of undisputed material facts, Defendants listed multiple
issues concerning Plaintiff—brought to their attention by the Solstice Report—which
raised “serious concerns and doubt as to whether [Plaintiff] was the right person for the
Fleet Manager position moving forward[.]” For example, Defendants noted the “pattern
of decisions made by [Plaintiff] that exceeded his authority as First Call’s Fleet
Manager[.]” In his January 19, 2018 affidavit, however, Plaintiff countered that “[a]ny
decision to spend more than $5,000 had to be approved by the CEO” and that he had
“obtained proper approval each time[.]” Referring to the Solstice Report’s conclusion
that Plaintiff’s “personal passion” of purchasing chassis and ambulance bodies for on-site
remounting and/or spare engine replacement was not “strategically sound for the
business[,]” Defendants noted that Plaintiff’s “personal goals and agenda for fleet
maintenance [were] contrary to First Call’s best interests[.]” Plaintiff, however, disputed
this in his affidavit, stating that he never relayed such a “passion” or “goals” to First Call
or the consulting firm: “I made the comment to Solstice that given the budgetary
constraints and skill sets we had, that we could bring more revenue in by simply servicing
ambulances and police cars from different counties or services in lieu of having
ownership[.]” Moreover, as set out above, Plaintiff stated that First Call “flew [him] to
California and St. Louis for the purpose [of] looking at more used ambulances and
purchasing more cabs and chassis to perform remounts.” In spite of Plaintiff’s affidavit
disputing the factual underpinning of the Solstice Report, the trial court inexplicably
found that “the Plaintiff has failed to present evidence raising a genuine issue of material
fact regarding First Call’s legitimate reliance on the independent consultant’s report in
reaching its decision to terminate Plaintiff’s employment.”

       “Summary judgment is inappropriate if there is any doubt concerning the
existence of a genuine issue of material fact, and the court may only award summary
judgment when a reasonable person could only come to one conclusion based on the facts
                                         -8-
and inferences drawn from those facts.” Newell v. First State Bank, Inc., No. W2017-
01209-COA-R3-CV, 2017 WL 6063115, at *2 (Tenn. Ct. App. Dec. 12, 2017).
Considering the evidence proffered by Plaintiff, a reasonable person could conclude that
the Solstice Report—and First Call’s reliance on it—have “no basis in fact” or were
“insufficient to motivate the adverse employment action.” Wilson, 104 S.W.3d at 51.
Therefore, we conclude that there exists a genuine issue of material fact as to whether
First Call’s reliance on the Solstice Report for Plaintiff’s termination was pretextual.
Accordingly, we also vacate the trial court’s grant of summary judgment to Defendant
First Call on this ground.

                                     CONCLUSION

       For the foregoing reasons, the trial court’s summary judgment order is vacated
with respect to Plaintiff’s THRA and TPPA claims against First Call, and the case is
remanded for further proceedings as may be necessary and are consistent with this
Opinion.



                                               _________________________________
                                               ARNOLD B. GOLDIN, JUDGE




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