# FILED
June 20, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk STUART N. ROBIN S, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9612- CV-00550 VS. ) ) Davidson Circuit ) No. 94C-3589 FLAGSHIP AIRL INES, INC. and, ) AMR CORPORATION, ) ) Defendants/Ap pellees. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C IRCU IT COU RT OF D AVIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE WALTER C. KURTZ, JUDGE

DOUGLAS S. JOHNSTON, JR. BARRETT, JOHNS TON & PARSLEY 217 Second Avenue North Nashvil le, Tennessee 37201 Attorney for Plaintiff/Appellant W EYMAN T. JOHNSON, Jr. KELLY J. KOELK ER MAUREEN E. O’NEILL 600 Peachtree Street, N.E., Sui te 2400 Atlanta, Georg ia 38308-2222 W AVERLY D. CRENSHAW , JR. BRIAN A. LAPPS, JR. 511 Union Street , Suite 2100 Nashvil le, Tennessee 37219 Attorneys for Defendants/Appelle es

AFFIRMED AND REMANDED

BEN H. CAN TRELL, JUDGE
CONCUR: TODD, P.J., M .S. LEW IS, J.- 2 - 

## O P I N I O N

The trial judge gra nted su mmary judg ment to the employer on the em ployee’s claims of breac h of an employment con tract, common law retaliat or y d ischarge, and violation of Tenn. Cod e Ann. § 50-1-304. On appe al the emplo ye e argues that t here are factual d isputes as to what motivated the employer to fire him and that the employer is not enti tled to ajudgment asa matter of law . The company assertst hat the state claims have been pree mpted by federal l aw. We affirm the judgm ent b elow.

I.

Stuart N. Robins went to work for Air Midwest in Wichita, Kansas in 1986 as an aircra ft mechanic. He transferred to Nashville in 1987, and later that year, Nashville Eagle, Inc. acquired the Nashville operations o f Air Midwest. Nashville Eagle, Inc. later became Flagship Airlines, Inc.

In 1990 Mr. Robi ns became a salaried manag ement employee w ith the title of maintenance superv isor. He a dmits, howev er, that he was at al l times an employee-at- will. On November 5, 1993, Flagship terminated Mr. Robins, allegedly forthe mismanagement of the company’s

petty cash fun d which was in h is cus tody.

Mr. R obin s fi led this acti on claiming that his ter mination vi olated an implied agreement in his employment contract, and that his firi ng was i n retaliati on for his threat to rev

eal that the company

falsified routin e maintenance repo rts . The company asser

ted that the state claims have been preempted by federal law

.- 3 - II. Preemption

The trial court did not reach this issue, and we have determi ned that it is not necessar

y for us to do s o either. Since we have found that the employer is entitled to a judgment as a matter of law

on the state claims , we decli ne to decide the issue of preemption.

III. The Cont ract Claim

Mr. Robins asser

ts thatan employee handbo ok contractual ly bound his employer

to work with him to correct any offensive behavior; that termination cou ld be imposed only after t he employee faile d to satisfactori ly respon d to programs designed to help h im. He argues, therefore, that even if he had been gui lty of mishandl ing the petty cash entrusted to him, the c ompany had agreed not to fire him for that transgres sion but to work wit h him to correct the unacceptabl e performance.

The facts in the record, in the ligh t most favorabl e to Mr. Rob ins, see Byrd v. Hall , 847 S.W.2d 208 (Tenn. 1993), show thatin 1990 when Mr. Robins was promoted to maintenanc e supervis or, he recei ved a handbook ent itled “Peak Performance Through Commitment - A Handboo k for Supervisors.” The handboo k, repeating a program that appeared in an ear lier employee handbook, outli ned a policy of “working w it h” employees whose job performance or condu ct was unacceptable; it specificall y discl aimed any poli cy of punishment for such employees. It did, however, reservethe company’s right to f ire an employee w ho commits an act that calls for immediate termi nation. One of the ac ts described as grounds for dismissal was: “D ishonesty of any kind in relations w ith the company .”- 4 - The e mployee handbook also con tains the following specific policy regardingtermination:

The Company res erves the r ightto terminate employ ment a t any time w ithout advanc e notice, its only obl igatio n being to p ay wag es or salary earned by an employee to date of termination. Without limitation, failure to abide by company

rules and regulati ons, poor performance, failure to pass any

co mpany physi cal examinat ion, and the fals ifi catio n or omission of any information g iven on an ap plication wil l enti tle th e Compa ny totermi nat e employment. In addition, the Supervisor’s Handbook had this prov ision:

Every situation is unique and therefore a sup ervisor must e xercise judgment in dealing with a particular proble m . The procedures out lined here are gen erally applicable, but the superv isor retai ns the authorit y and the responsibil ity

for dealing with specific problems in specif ic ways d ictated by the circumstan ces of the case.

We f ail to see how

the vari ous handbook prov isions can be construed to provide a restraint

on the employer’s righ t to terminate i ts employees. At most, the handbook(s) announce a polic y of employee he l p to improve substandard performanc e. Th e bottom line, however, is a specific reservatio n of the right to terminate employees at any time - - a righ t that is compati ble with at-wil l 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 becau se he was about to go public with informat ion that the company falsified important maintenance records con cerning its airplanes.

In support ofits motion for s ummary judg ment the company i ntroduced evidence that the reason it terminated Mr. Robins was the mi smanagement ofa $200 petty cash fund under his

control, w hich was to be keptin a secure place on company- 5 -

premises. When the company condu cted an audit of the accoun t, it found that Mr. Robins had $100 on his per son, and he said $ 100 was “at home.” Mr. Robins explained the breach of comp any policyby saying that there was no secure pl ace at work to keep the m one y.

In opposition to the motion Mr . Robins offered evidence that on August 21, 1993 his shift was to conduct a functional check

of the oxyg en pressure system on one of the compa ny’s airplanes. The check was to be performe d in accordance with work card 1323 which required a pi ece of equipment the company did not have. Mr. Robins declined to conduct the test and submitted a requisition fo r the necessary equipment. Later, he dis covered that another employee had con ducted the test and had filled out card 1323 as if all of the car

d’s requi rements had been complied w ith. The same thing happened on subsequent occasions. Mr . R obins did not report his observati ons to the FAA. He did dis cuss the proc edure wit h the company’s director of maintenance contr

ol, who ex plained that the t est could be per formed without a

test unit.

On August 29, 1993, Mr. Robin s sent aletter to the president of Flagship Airlines, Inc. in which he repeated a compl aint about his p ersonal pay and he outlined some concerns about problems in th e maintenance dep artment. He did not, however,
m ention the incident concerning card 1323, nor di d he express an opinion that th e company

was in v iolation of FAA r ules or that i t was eng aged in il legal activit ies. Mr. Robins’ pay disputeand his concer ns about the mainten ance department we re of long duration, and h e had wo rked his way up the company chain of comman d with his complaints.

On October 20, 1993, Mr. Robins elevated his sig hts and sent a simil ar letter to the president of AMR Corpor ation, the ow ner

of Flagship Airlines. The letter followed closely

the same arguments made in the August letter. All but one paragr aph- 6 -

of the letter

was devot ed to th e pay issue . The ot her par agrap h did relate t o probl ems in the maintenance depar tment but it did not mention anything illegal nor did it refer to the oxygen test inc ident, nor tocard 1323. The final paragraph of the October 20 letter concludes:

Mr. Crandall, if my l etter to you follows the company’s gene ral beha vior up to this point, I don’t expect I will rece ive a r espons e from you, and I’ m not going to be waitingforone. I am alread y seekingcounsel on thepay issues and am preparingto bring t hese issues before the med ia. I am not relay ing this t o you in thecompan y standard of propaganda or intimidation, just as a fact. And just s o you k now - - I r ealize this puts me in a very precariousposition in regards to my future wit h t his comp any, but then again, the way I see it there is no more future with me in this company . You cannot g ive me w hat I aspire for in regards t o anyone I would rely o n for my liveli hood.

On October 31, 1993 a surpr ise audit rev ealed that Mr. Robins’ pett y cash fund was not bei ng handled in accordance w ith company pol icy. A s uperior relieved Mr. Robin s of his respons ibilities and sent him home. H e was ter minated on November 5, 1993.

In Tennessee the Supreme C ourt has recog nized a cause of action for retaliatorydischarg e where the employer v iolates a cl ear public pol icy in d ischargi ng an at -will empl oyee. Chism v. Mid-South Milling Co., Inc. , 762 S.W.2d 552 (Tenn. 1988). The Court first announced i ts rule in Clanton v. C ain-Sloan, C

o. , 677 S.W.2d 441 (Tenn. 1984), w here the employee was all egedly fir ed for ex erci sing her r ights under the worker’s compen satio n statutes. In Hodges v. Toof , 833 S.W.2d 896 (Tenn. 1992), the Court allowed an actio n for pun itive damag es for discharging an employee for extended jury duty. In Reynolds v. Ozar k Motor Lines, Inc. , 887 S.W.2d 822 (Tenn. 1994), the Court said th e discharge must violate a strong public poli cy as expressed i n an “unambiguous constitutiona l, statutory , or regul atory prov ision.”- 7 - In 1988 the legislature passed an act giving employees acause of action for retaliatory discharge where the employer discharg es or terminat es an employee “solelyfor refusing to

participate in, or for refusi ng to remai n si lent about, il legal activiti es.” See Tenn. C ode Ann. § 50-1-304

.

We are convinced that there is no proof in t he record from w hich a trier of fac t cou ld inf er th at Mr. Robin s’ ter mina tion gave him eit her a common law or st atutorycause of action fo r retaliatory discharge. His letters t o compan y managementfollowingt he August 21 i ncident wi th card 1323 do not mention the incidentnor do they hint that the company is invo lved in i llegal ac tiviti es. They continue to press Mr. Robins’ claims for back p ay and insist that the maintena nce d epartment i s poorly run, but they do not even appr

oach the subject

of statutory or regulatoryviolations. And, finally, the only threat to go publi c conc erns the pay disp ute - - hard ly an il legal activi ty.

An essential el ement of Mr. Robi ns’ cause o f action for retaliatory dischar ge is missing . Under the rule s governing summary judgment as outlined in Byrd v. Hall , 847 S.W.2d 208 (Tenn. 1993), summary j udgment against him was proper.

The judgment of thecourt below is affirmed and the cause is remanded to the Circui t Court of Davidson Co unty fo r any furt her proc eedings that may become necessary . Tax the costs on appeal to th e appellant.

_________________________________ BEN H. CAN TRELL, JUDGE
CONCUR:

_______________________________- 8 -

HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ SAMUEL L. LEWIS, JUDGE