United States: TN Appeals Court Reinstates Hostile Work Environment And Whistleblower Claims

THIS ARTICLE FIRST APPEARED IN HRLAWS.COM'S  TENNESSEE EMPLOYMENT LAW LETTER BY BUTLER SNOW'S David L. Johnson.

An individual may file a claim under Tennessee's "whistleblower statute"—the Tennessee Public Protection Act (TPPA)—if she was fired solely for reporting or refusing to participate in illegal activity. Similar to federal law, the Tennessee Human Rights Act (THRA) prevents companies from discriminating against employees based on race, sex, nationality, religion, and other protected classes. Creating a hostile work environment is one form of discrimination.

Recently, the Tennessee Court of Appeals considered whether a Davidson County trial court erred in dismissing an employee's TPPA and THRA claims on summary judgment (without a trial). Summary judgment is a legal tool designed to weed out complaints that don't merit the time and expense of a jury trial. Under the exacting standard, an employer must show that even if the facts are construed in the employee's favor, her claims should be dismissed. The court of appeals concluded the trial court erred by awarding summary judgment and that a jury trial was warranted.

Facts

Chris Whitney, an Asian American, worked for First Call Ambulance Service, LLC, as the ambulance fleet manager for its Nashville operation. He was responsible for making sure enough ambulances were available and providing service and maintenance. Whitney claims during his employment, his coworkers made inappropriate comments about his race. Among other conduct, he alleges he was called a "damn chink," someone placed a sign on his office door suggesting he eats cats, he was told he looks like a terrorist, and someone asked how he'd be able to communicate with his relatives in North Korea during a time in which the Internet wasn't operational in that country.

Whitney found himself at odds with upper management when he complained to it and to the state of Tennessee that First Call was running afoul of state safety regulations. At one point, the company's CEO punched him in the face and grabbed him by the throat after Whitney threatened to "tell the truth" to the state. First Call retained an independent consulting firm to delve into the fleet management operations. After the consulting firm expressed concerns about Whitney's job performance, First Call fired him.

Whitney sued First Call, claiming it violated the TPPA by firing him for blowing the whistle on its safety violations. He also claimed he was subjected to a hostile work environment based on his Asian background in violation of the THRA. The trial court dismissed his claims on summary judgment. It concluded he "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." Although the court called the allegedly racist utterances "disgusting and offensive," it found they were made over the course of four years and didn't rise to the level of creating a hostile work environment.

Holding

On appeal, the court of appeals concluded the trial court got it wrong and didn't properly construe the evidence in the light most favorable to Whitney. The appeals court found he came forward with enough evidence to convince a jury First Call violated both the TPPA and the THRA. As for his TPPA whistleblower claim, it found he had sufficient evidence that, if believed, could cause a reasonable person to determine the consultant's report was a sham and was concocted to serve as a basis for ousting him. For instance, he claims the consultant blamed him for doing things upper management required him to do. Further, the report faulted him for managing a fleet with higher maintenance costs than the company's Ohio operation, but he explained the Nashville fleet had more diesel vehicles and operated in more urban areas. Because "a reasonable person could conclude that the [consultant's] report—and First Call's reliance on it—have 'no basis in fact' or were 'insufficient to motivate the adverse employment action.'"

The appeals court similarly concluded the trial court didn't appropriately make inferences in Whitney's favor when it dismissed his hostile work environment claim. Although the offensive utterances were made over the course of four years, most were made in the few months leading up to his termination. The court wrote, "while the trial court noted that 'someone referred to [Whitney] as a 'chink,' this downplays the fact that [he] 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 court of appeals also found the trial court didn't appropriately appreciate the humiliating nature of the alleged comments. Considering the totality of the evidence in full context and in the light most favorable to Whitney, the court determined a reasonable person could conclude the conduct was "sufficiently severe or pervasive to create a hostile work environment." Therefore, it sent the case back to the trial court to conduct a jury trial on his whistleblower and hostile work environment claims. Whitney v. First Call Ambulance Serv., No. M2018-0115-COA-R3-CV (Tenn. Ct. App., Apr. 15, 2019).

Bottom line

It's really hard to get summary judgment. An employer must show that—even assuming the former employee's side of the story is true—no reasonable juror would determine the employer broke the law. Therefore, most employees who have a legitimate, fact-supported argument and get their ducks in a row may defeat a summary judgment request and allow a jury to resolve the dispute. In this case, Whitney seems to have had his ducks in a row to meet this low threshold.

Of course, just because Whitney won the battle doesn't mean he'll win the war. It's a lot easier for him to survive summary judgment than to prove his claims at trial. At that point, he will bear the burden of proof. It will be challenging to prove his hostile work environment claims, particularly given that First Call apparently intends to show he never complained about the utterances and made race-tinged jokes himself. He will also need to prove his whistleblowing was the sole cause for his termination—a difficult burden to prove. The fact it appears to be undisputed that his supervisor slugged him in the face, however, should help him receive sympathy from the jury. I'm surprised that didn't prompt him to quit on the spot because that could certainly qualify as constructive discharge.

Originally Publish by HRLAWS.COM'S Tennessee Employment Law Letter

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions