FILED

June 20, 1997

Cecil W. Crowson

Appellate Court Clerk

STUART N. ROBINS, )

)

Plaintiff/Appellant, )

) Appeal No.

) 01-A-01-9612-CV-00550

VS. )

) Davidson Circuit

) No. 94C-3589

FLAGSHIP AIRLINES, INC. and, )

AMR CORPORATION, )

)

Defendants/Appellees. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE WALTER C. KURTZ, JUDGE

DOUGLAS S. JOHNSTON, JR.

BARRETT, JOHNSTON & PARSLEY

217 Second Avenue North

Nashville, Tennessee 37201

Attorney for Plaintiff/Appellant

WEYMAN T. JOHNSON, Jr.

KELLY J. KOELKER

MAUREEN E. O’NEILL

600 Peachtree Street, N.E., Suite 2400

Atlanta, Georgia 38308-2222

WAVERLY D. CRENSHAW, JR.

BRIAN A. LAPPS, JR.

511 Union Street, Suite 2100

Nashville, Tennessee 37219

Attorneys for Defendants/Appellees

AFFIRMED AND REMANDED 

BEN H. CANTRELL, JUDGE

CONCUR:

TODD, P.J., M.S.

LEWIS, J.
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O P I N I O N

The trial judge granted summary judgment to the employer on the

employee’s claims of breach of an employment contract, common law retaliatory

discharge, and violation of Tenn. Code Ann. § 50-1-304. On appeal the employee

argues that there are factual disputes as to what motivated the employer to fire him

and that the employer is not entitled to a judgment as a matter of law. The company

asserts that the state claims have been preempted by federal law. We affirm the

judgment below.

I.

Stuart N. Robins went to work for Air Midwest in Wichita, Kansas in 1986

as an aircraft mechanic. He transferred to Nashville in 1987, and later that year,

Nashville Eagle, Inc. acquired the Nashville operations of Air Midwest. Nashville

Eagle, Inc. later became Flagship Airlines, Inc.

In 1990 Mr. Robins became a salaried management employee with the

title of maintenance supervisor. He admits, however, that he was at all times an

employee-at-will. On November 5, 1993, Flagship terminated Mr. Robins, allegedly

for the mismanagement of the company’s petty cash fund which was in his custody.

Mr. Robins filed this action claiming that his termination violated an

implied agreement in his employment contract, and that his firing was in retaliation for

his threat to reveal that the company falsified routine maintenance reports. The

company asserted that the state claims have been preempted by federal law. 
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II.

Preemption

The trial court did not reach this issue, and we have determined that it

is not necessary for us to do so either. Since we have found that the employer is

entitled to a judgment as a matter of law on the state claims, we decline to decide the

issue of preemption.

III.

The Contract Claim

Mr. Robins asserts that an employee handbook contractually bound his

employer to work with him to correct any offensive behavior; that termination could be

imposed only after the employee failed to satisfactorily respond to programs designed

to help him. He argues, therefore, that even if he had been guilty of mishandling the

petty cash entrusted to him, the company had agreed not to fire him for that

transgression but to work with him to correct the unacceptable performance.

The facts in the record, in the light most favorable to Mr. Robins, see

Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), show that in 1990 when Mr. Robins was

promoted to maintenance supervisor, he received a handbook entitled “Peak

Performance Through Commitment - A Handbook for Supervisors.” The handbook,

repeating a program that appeared in an earlier employee handbook, outlined a policy

of “working with” employees whose job performance or conduct was unacceptable;

it specifically disclaimed any policy of punishment for such employees. It did,

however, reserve the company’s right to fire an employee who commits an act that

calls for immediate termination. One of the acts described as grounds for dismissal

was: “Dishonesty of any kind in relations with the company.”
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The employee handbook also contains the following specific policy

regarding termination:

The Company reserves the right to terminate employment

at any time without advance notice, its only obligation

being to pay wages or salary earned by an employee to

date of termination. Without limitation, failure to abide by

company rules and regulations, poor performance, failure

to pass any company physical examination, and the

falsification or omission of any information given on an

application will entitle the Company to terminate

employment.

In addition, the Supervisor’s Handbook had this provision:

Every situation is unique and therefore a supervisor must

exercise judgment in dealing with a particular problem.

The procedures outlined here are generally applicable,

but the supervisor retains the authority and the

responsibility for dealing with specific problems in specific

ways dictated by the circumstances of the case.

We fail to see how the various handbook provisions can be construed

to provide a restraint on the employer’s right to terminate its employees. At most, the

handbook(s) announce a policy of employee help to improve substandard

performance. The bottom line, however, is a specific reservation of the right to

terminate employees at any time -- a right that is compatible with at-will employment.

See Medley v. A.W. Chesterson Co., 912 S.W.2d 748 (Tenn. App. 1995).

IV.

Retaliatory Discharge

Mr. Robins alleged in his complaint that his employer fired him because

he was about to go public with information that the company falsified important

maintenance records concerning its airplanes.

In support of its motion for summary judgment the company introduced

evidence that the reason it terminated Mr. Robins was the mismanagement of a $200

petty cash fund under his control, which was to be kept in a secure place on company
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premises. When the company conducted an audit of the account, it found that Mr.

Robins had $100 on his person, and he said $100 was “at home.” Mr. Robins

explained the breach of company policy by saying that there was no secure place at

work to keep the money.

In opposition to the motion Mr. Robins offered evidence that on August

21, 1993 his shift was to conduct a functional check of the oxygen pressure system

on one of the company’s airplanes. The check was to be performed in accordance

with work card 1323 which required a piece of equipment the company did not have.

Mr. Robins declined to conduct the test and submitted a requisition for the necessary

equipment. Later, he discovered that another employee had conducted the test and

had filled out card 1323 as if all of the card’s requirements had been complied with.

The same thing happened on subsequent occasions. Mr. Robins did not report his

observations to the FAA. He did discuss the procedure with the company’s director

of maintenance control, who explained that the test could be performed without a test

unit. 

On August 29, 1993, Mr. Robins sent a letter to the president of Flagship

Airlines, Inc. in which he repeated a complaint about his personal pay and he outlined

some concerns about problems in the maintenance department. He did not, however,

mention the incident concerning card 1323, nor did he express an opinion that the

company was in violation of FAA rules or that it was engaged in illegal activities. Mr.

Robins’ pay dispute and his concerns about the maintenance department were of long

duration, and he had worked his way up the company chain of command with his

complaints.

On October 20, 1993, Mr. Robins elevated his sights and sent a similar

letter to the president of AMR Corporation, the owner of Flagship Airlines. The letter

followed closely the same arguments made in the August letter. All but one paragraph
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of the letter was devoted to the pay issue. The other paragraph did relate to problems

in the maintenance department but it did not mention anything illegal nor did it refer

to the oxygen test incident, nor to card 1323. The final paragraph of the October 20

letter concludes:

Mr. Crandall, if my letter to you follows the company’s

general behavior up to this point, I don’t expect I will

receive a response from you, and I’m not going to be

waiting for one. I am already seeking counsel on the pay

issues and am preparing to bring these issues before the

media. I am not relaying this to you in the company

standard of propaganda or intimidation, just as a fact.

And just so you know -- I realize this puts me in a very

precarious position in regards to my future with this

company, but then again, the way I see it there is no more

future with me in this company. You cannot give me what

I aspire for in regards to anyone I would rely on for my

livelihood.

On October 31, 1993 a surprise audit revealed that Mr. Robins’ petty

cash fund was not being handled in accordance with company policy. A superior

relieved Mr. Robins of his responsibilities and sent him home. He was terminated on

November 5, 1993.

In Tennessee the Supreme Court has recognized a cause of action for

retaliatory discharge where the employer violates a clear public policy in discharging

an at-will employee. Chism v. Mid-South Milling Co., Inc., 762 S.W.2d 552 (Tenn.

1988). The Court first announced its rule in Clanton v. Cain-Sloan, Co., 677 S.W.2d

441 (Tenn. 1984), where the employee was allegedly fired for exercising her rights

under the worker’s compensation statutes. In Hodges v. Toof, 833 S.W.2d 896

(Tenn. 1992), the Court allowed an action for punitive damages for discharging an

employee for extended jury duty. In Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d

822 (Tenn. 1994), the Court said the discharge must violate a strong public policy as

expressed in an “unambiguous constitutional, statutory, or regulatory provision.”
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In 1988 the legislature passed an act giving employees a cause of action

for retaliatory discharge where the employer discharges or terminates an employee

“solely for refusing to participate in, or for refusing to remain silent about, illegal

activities.” See Tenn. Code Ann. § 50-1-304.

We are convinced that there is no proof in the record from which a trier

of fact could infer that Mr. Robins’ termination gave him either a common law or

statutory cause of action for retaliatory discharge. His letters to company

management following the August 21 incident with card 1323 do not mention the

incident nor do they hint that the company is involved in illegal activities. They

continue to press Mr. Robins’ claims for back pay and insist that the maintenance

department is poorly run, but they do not even approach the subject of statutory or

regulatory violations. And, finally, the only threat to go public concerns the pay

dispute -- hardly an illegal activity.

An essential element of Mr. Robins’ cause of action for retaliatory

discharge is missing. Under the rules governing summary judgment as outlined in

Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), summary judgment against him was

proper.

The judgment of the court below is affirmed and the cause is remanded

to the Circuit Court of Davidson County for any further proceedings that may become

necessary. Tax the costs on appeal to the appellant.

_________________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________
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HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_______________________________

SAMUEL L. LEWIS, JUDGE