In Sweat v. City of McMinnville, filed 3/23/2018, the Tennessee Court of Appeals affirmed the dismissal of a firefighter's case brought under the Tennessee Public Protection Act (TPPA), Tenn. Code Annotated Section 50-1-304, also known as the Whistleblower Act. Cases under the act are difficult to win since one of the things one must establish is that a discharge from employment was caused "solely" by the employee's refusal to participate in, or remain silent about, an illegal activity.
In Sweat, as in many of these cases, the employer (a city) was able to point to other things that it said motivated it to terminate the firefighter's employment. These included the alleged inability to work with effective leadership, making inappropriate phone calls from the firehouse to a private citizen, and going outside the chain of command. Since the firefighter, in order to prevail, would need to prove that his "protected activity" (refusing to participate in or remain silent about illegal activity) was the "sole" reason for his termination, even one of these other reasons, if not made up to justify the discharge, would be enough to defeat his claim. The trial court and Tennessee Court of Appeals found that this was the case.
The "protected activity" in which the firefighter claimed to have been engaged was joining with 27 other firefighters in a letter to the city's human resources director outlining safety concerns with regard to the actions of the fire chief. None of these other 27 other firefighters was let go. In addition, the plaintiff had also written a letter individually detailing six complaints to the same human resources director. An investigation was conducted, the fire chief was terminated, and an interim chief was hired. Somewhere along the way, the plaintiff firefighter was let go/terminated from his employment with the city. There was evidence that the firefighter's discharge occurred relatively soon after he engaged in the protected activity. He also argued that the reasons the city cited for the discharge did not occur in close proximity to the discharge from a timing standpoint.
In analyzing the case, the Court of Appeals discussed the legal requirements applicable to TPPA cases. The court's analysis honed in on the reasons the city offered for dismissing the firefighter. The court noted that, in order for his case to survive, the plaintiff would need to show that the city's reasons had no basis in fact, did not actually motivate the discharge, or were insufficient to motivate the discharge. The Court of Appeals found that none of these situations was present and hence, that summary judgment for the city was appropriate.
Again, this case illustrates the difficulty of even getting a TPPA case to the jury for its decision on the matter. The TPPA has other legal requirements, as well. As noted in Sweat, sometimes, there are other legal theories besides the TPPA that are available in whistleblowing-type actions involving a termination from employment. These include common-law retaliatory discharge, as well as a statute, Tenn. Code Ann. Sec. 8-50-116, that is specifically applicable only to state employees. These topics, however, are beyond the scope of this post.
It is unknown whether the firefighter will seek review by the Tennessee Supreme Court.