FILED

May 8, 1996

Cecil W. Crowson

Appellate Court Clerk

EVELENE N. STEIN, )

)

Plaintiff/Appellant, ) Appeal No.

) 01-A-01-9509-CV-00407

v. )

) Davidson County Circuit Court

DAVIDSON HOTEL COMPANY, ) No. 95-C-67

)

Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE FIRST CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE HAMILTON V. GAYDEN, JUDGE

PATRICIA A. MONTGOMERY

Westlake & Marsden, P.C.

Third National Financial Center

424 Church Street, Suite 1400

Nashville, Tennessee 37219

ATTORNEY FOR PLAINTIFF/APPELLANT

JOHN S. HICKS

STEPHEN H. BILLER

KATHERINE A. BROWN

Baker, Donelson, Bearman & Caldwell

1700 Nashville City Center

511 Union Street

Nashville, Tennessee 37219

ATTORNEYS FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE
2

OPINION

This is an appeal by plaintiff/appellant, Evelene N. Stein,

from a judgment dismissing five of the seven claims alleged by Ms.

Stein against defendant/appellant, Davidson Hotel Company

("Davidson").

I. Facts and History

Ms. Stein began working at the Holiday Inn Crowne Plaza on 6

June 1989. At that time, Flautt Properties, Inc. owned the hotel.

In September of 1990, Flautt sold the hotel to Davidson. After the

sale, Ms. Stein continued to work at the hotel. The complaint

alleged that Ms. Stein was fifty-one years old and that she was an

above average employee according to Davidson's own criteria.

 

In 1992, Davidson instituted a drug and alcohol testing

program. The program included pre-employment testing, reasonable

suspicion testing, after accident testing, and random drug testing.

Davidson required all employees to sign a consent and release form.

Ms. Stein alleged that the understanding of the employees was that

Davidson would immediately terminate them if they failed to sign

the form. Further, Ms. Stein claimed that she signed the form

based on this perceived threat and that she did not realize the

form released Davidson and the testing facility from "liability for

the negligent performance or reporting of drug test results."

In October 1994, Davidson advised Ms. Stein that they had

selected her for a random drug test. Thereafter, Ms. Stein went to

Roche Biomedical Laboratories, Inc. and provided them with a urine

sample. Joe Dietz, Ms. Stein's immediate supervisor, informed Ms.

Stein that she had tested positive for drugs. Later that day, Ms.

Stein met with other Davidson managers and denied any drug use. In
3

her complaint, Ms. Stein alleged that she offered to provide

another urine sample or a blood sample, but Davidson refused these

offers. In Davidson's brief, Davidson stated that it offered to

have Roche retest Ms. Stein's original urine sample, but Ms. Stein

refused. As a result of the positive test, Davidson terminated Ms.

Stein.

On 9 January 1995, Ms. Stein filed her complaint against

Davidson. The causes of action contained in the complaint were as

follows: 1) wrongful discharge in violation of public policy as

expressed in the federal and state constitutions; 2) tortious

invasion of privacy; 3) breach of an implied employment contract;

4) breach of an implied covenant of good faith and fair dealing; 5)

negligence on the part of Davidson; 6) negligent infliction of

emotional distress and outrageous conduct; and 7) failure to pay

Ms. Stein her earned vacation time. On 7 March 1995, Davidson

filed a "Motion to Dismiss or for Summary Judgment."

On 9 June 1995, the trial court entered an order granting the

motion in part and denying it in part. The court granted

Davidson's motion to dismiss for failure to state a claim upon

which relief can be granted as to counts one, two, three, five, and

six. The court, for "reasons stated in open court," took

"Davidson's Motion regarding the fourth cause of action under

advisement pending further order." Finally, the court reviewed the

affidavits submitted by the parties and concluded that there was a

genuine issue of material fact raised by the seventh count. Based

on this conclusion, the court denied Davidson's motion as to the

seventh count. Pursuant to Tennessee Rule of Civil Procedure

54.02, the court found that there were no just reasons for delay

and held that the order was final. 

Ms. Stein filed her notice of appeal with the clerk of this
1 Davis v. Davis, 842 S.W.2d 588, 600 (Tenn. 1992), cert. denied, 113

S. Ct. 1259 (1993).

2 Simmons v. Simmons, 900 S.W.2d 682, 683-84 (Tenn. 1995); Hawk v.

Hawk, 855 S.W.2d 573, 582 (Tenn. 1993).

3 Campbell v. Sundquist, App. No. 01-A-01-9507-CV-00321 slip. opn. at

18-20, 21 T.A.M. 7-4 (Tenn. App. 26 Jan. 1996).

4

court on 7 July 1995. The notice stated that Ms. Stein sought to

appeal that part of the 9 June 1995 order dismissing counts one,

two, and three of her complaint. Later, in her brief, Ms. Stein

voluntarily dismissed her appeal as to count three. Thus, Ms.

Stein presented this court with the following two issues:

I. Whether a cause of action for wrongful discharge

may be premised upon the termination of employment

in violation of an employee's constitutional

rights.

II. Whether a cause of action for the tortious invasion

of privacy requires state action in a case by an

employee against a private sector employer.

We acknowledge at the outset that the rights invoked by Ms.

Ms. Stein are substantial. Privacy interests cover a broad range

of human activity. In the constitutional context our courts have

recognized the privacy interest surrounding human procreation,1 the

care and custody of children,2 and consensual sexual activity

between adults.3 The right to personal autonomy is extremely

important in light of the growing intrusiveness of today’s society.

Invasions of privacy involve interferences with an individual’s

interest “in leading, to some reasonable extent, a secluded and

private life, free from the prying eyes, ears and publications of

others.” See RESTATEMENT (SECOND) OF TORTS, § 652A cmt. b (1976).

These invasions of privacy can take many different forms, including

opening a person’s private mail, searching a persons’s safe, purse,

or wallet, or examining a person’s private bank account. RESTATEMENT

(SECOND) OF TORTS, § 652B cmt. b (1976). The invasion of this right

is no less intrusive when it is undertaken by a private person than

when it is undertaken by the government or a subsidiary of the

government. Experience teaches us that personal privacy is
5

threatened by the almost insatiable information gathering appetites

of not only governments but of private interests as well.

Wilkinson v. Times Mirror Corp., 264 Cal. Rptr. 194, 200 (Cal. App.

1989). The reasonable expectation of privacy would be illusory at

best if individuals could not control the circulation of personal

information and if the law only restricted the government’s

collection and retention of information.

II. Standard of Review

Before addressing Ms. Stein's issues, we must first address a

preliminary issue dealing with the standard of review. Ms. Stein

contends that the trial court's failure to exclude affidavits,

presented by both parties, converted the Rule 12.02(6) motion to

dismiss into a Rule 56 motion for summary judgment. Thus, she

suggested that we review the trial court's decision as if the court

based its decision on the principles of summary judgment.

Davidson, however, argued that this court should review the trial

court's order as if the court dismissed the counts based on a Rule

12.02(6) motion to dismiss.

We agree with Davidson. Ms. Stein's contention that a trial

court can convert a Rule 12.02(6) motion into a Rule 56 motion by

considering material outside the pleadings is correct. Knierim v.

Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976). A trial court,

however, can "prevent a conversion from taking place by declining

to consider extraneous matters." Pacific E. Corp. v. Gulf Life

Holding Co., 902 S.W.2d 946, 952 (Tenn. App. 1995). That is

precisely what happened in this case. The relevant portion of the

trial court's order provided:

In ruling upon Davidson's Motion as it pertains to the

seventh count of the Complaint, the Court has considered

the Affidavit of Casey Stovall submitted by Davidson and

has considered the Affidavit of Ms. Stein. Therefore,
6

the Court treats the Motion as it pertains to the seventh

count of the Complaint as a Motion for Summary Judgment

pursuant to Rule 56 of the Tennessee Rules of Civil

Procedure.

As to counts one, two, three, five, and six, the trial court

expressly stated that he was dismissing the counts for failure to

state a cause of action upon which relief can be granted, a Rule

12.02 ground for dismissal. It is apparent that the trial court's

actions converted the motion to dismiss as it pertained to the

seventh count into a motion for summary judgment. In contrast, the

court did not convert the motion to dismiss into a motion for

summary judgment when it addressed counts one and two, the counts

which form the basis of this appeal. Therefore, this court must

use the standard of review applicable to Rule 12.02(6) motions. 

In reviewing an appeal from an order dismissing a suit

for failure to state a claim upon which relief can be

granted, we obviously are limited to the allegations in

the complaint, and we must construe the complaint

liberally in favor of the plaintiff, taking all of the

allegations of fact therein as true.

Randolph v. Dominion Bank of Middle Tenn., 826 S.W.2d 477, 478

(Tenn. App. 1991) (citing Huckeby v. Spangler, 521 S.W.2d 568, 571

(Tenn. 1975)). 

III. Wrongful Discharge Claim

"Under long-established Tennessee law, an employee-at-will can

be discharged without breach of contract for good cause, bad cause

or no cause at all." Clanton v. Cain-Sloan Co., 677 S.W.2d 441,

443 (Tenn. 1984)(citing Payne v. Railroad Company, 81 Tenn. 507

(1884)). Given the long history of this rule, the supreme court

was unwilling to create any exceptions. In 1984, however, the

court held that the Workers' Compensation Law implicitly included

an action for retaliatory discharge. Specifically, the action

recognized by the court allowed an employee to bring a suit against

an employer who had terminated the employee for filing a worker's
4 Although authorities suggest that retaliatory discharge is actually

one of the wrongful discharge actions based on a public policy violation,

Tennessee's court often use the terms wrongful discharge and retaliatory

discharge interchangeably. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF

TORTS §130, at 1029-30 (5th ed. 1984); 82 AM. JUR. 2D Wrongful Discharge § 11

(1992).

7

compensation claim. Id. at 443-45. In coming to its final

decision, the court stated as follows:

[T]he Workers' Compensation Law is a comprehensive scheme

enacted to provide a certain and expeditious remedy for

injured employees. It reflects a careful balancing of

the interests of employer and employee. . . .

Retaliatory discharges completely circumvent this

legislative scheme. Such discharges will have the effect

of relieving the employer of its duty to compensate and

the employee of his or her right to compensation. . . .

In our opinion, a cause of action for retaliatory

discharge, although not explicitly created by the

statute, is necessary to enforce the duty of the

employer, to secure the rights of the employee and to

carry out the intention of the legislature. A statute

need not expressly state what is necessarily implied in

order to render it effectual.

Id. at 443. In a later opinion, the court emphasized that its

decision had not created a new exception to the employment at will

doctrine, but "merely recognized that implicit within the

provisions of T.C.A. Sec. 50-6-114 a cause of action existed. . .

." Harney v. Meadowbrook Nursing Ctr., 784 S.W.2d 921, 922 (Tenn.

1990); see Hodges v. S.C. Toof & Co. 833 S.W.2d 896, 903 (Tenn.

1992) (O'Brien, J., concurring and dissenting). 

Through the years, the supreme court has refined the test for

determining whether the courts should recognize a cause of action

for wrongful discharge.4 In 1988, the supreme court stated as

follows:

To be liable for retaliatory discharge. . . , the

employer must violate a clear public policy. Usually

this policy will be evidenced by an unambiguous

constitutional, statutory or regulatory provision.

Further, the violation must be a substantial factor in

the termination of an at-will employee, agent or officer.

Chism v. Mid-South Milling Co., 762 S.W.2d 552, 556 (Tenn. 1988).

Time and time again, the supreme court has echoed this principle.
5 Tenn. Code Ann. § 22-4-108(f)(1) (1994); see also Hodges v. S.C. Toof

& Co., 833 S.W.2d 896, 899 (Tenn. 1992).

8

Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn.

1994); Anderson v. Standard Register Co., 857 S.W.2d 555, 557

(Tenn. 1993); Hodges, 833 S.W.2d at 899; Harney, 784 S.W.2d at 922-

23.

Because it is not the role of the courts to create public

policy, it has been difficult, if not impossible, for the courts to

recognize novel claims of wrongful discharge. In regard to the

courts and the creation of public policy, the Tennessee Supreme

Court stated as follows:

This court can know nothing of public policy except

from the constitution and the laws, and the course of

administration and decision. It has no legislative

powers. It cannot amend or modify any legislative acts.

It cannot examine questions as expedient or inexpedient,

as politic or impolitic. Considerations of that sort

must, in general, be addressed to the legislature. 

Questions of policy determined there are concluded here.

There are cases, it is true, in which arguments

drawn from public policy must have large influence; but

these are cases in which the course of legislation and

administration do not leave any doubt upon the question

what the public policy is, and in which what would

otherwise be obscure or of doubtful interpretation, may

be cleared and resolved by reference to what is already

received and established.

Nashville Ry. & Light Co. v. Lawson, 144 Tenn. 78, 91, 229 S.W.

741, 744 (1920) (quoting License Tax Case, 5 Wall. 469, 18 L. Ed.

497).

The Tennessee General Assembly has also played a role in the

development of the employment at will doctrine. Through the years

the General Assembly has enacted various statutes which prohibit

employers from terminating employees for certain reasons. For

example, an employer may not terminate an employee because the

employee served as a juror5; because an employee is of a particular
6 Tenn. Code Ann. § 4-21-301(1) (1991) (regarding retaliation or

discrimination against an employee who has opposed a discriminatory practice);

Tenn. Code Ann. § 4-21-401(a) (1991) (defining a discriminatory practice in

regard to employers); see also Newsom v. Textron Aerostructures, No. 01A01-

9504-CH-00151, 1995 WL 614203, at *7-*9 (Tenn. App. 20 October 1995); Roberson

v. University of Tenn., 829 S.W.2d 149, 152 (Tenn. App. 1992).

7 Tenn. Code Ann. § 8-50-103(a) (1993).

8 Tenn. Code Ann. § 50-1-304(a), (c) (1991).

9 Tenn. Code Ann. §§ 50-3-106(7), 50-3-409(a) (1991).

9

race, creed, color, religion, sex, age, or national origin6;

because an employee is disabled7; because an employee refused to

participate in or refused to remain silent about illegal

activities8; or because an employee filed a complaint, instituted

a proceeding or investigation, testified in a proceeding, or

exercised a right pursuant to the Occupational Safety and Health

Act of 1972.9

To summarize, the statutes of this state provide employees

relief from certain employer conduct. In addition, the courts have

recognized a very limited cause of action for wrongful discharge

based on a violation of clear public policy. As to the instant

case, it is not the province of this court to create any additional

exceptions to the employment at will doctrine absent a violation of

clear public policy evidenced by an unambiguous constitutional,

statutory, or regulatory provision.

Ms. Stein's first issue is very broad and includes many topics

which are irrelevant to this case. The actual issue presented by

this appeal is whether the trial court correctly found that count

one of Ms. Stein's complaint failed to state a claim upon which

relief can be granted. In resolving this issue, there are two

questions derived from the above discussion which we must answer.

First, is there a statutory basis for Ms. Stein's cause of action,

and if so, did Ms. Stein allege the necessary elements? Second,

did count one of Ms. Stein’s complaint allege a wrongful discharge

action based on the theory that Davidson violated clear public
10 At no time was Roche a party to this action.

11 Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 444-45 (Tenn. 1984). 

12 Roberson v. University of Tenn., 829 S.W.2d 149, 152 (Tenn. App.

1992).

10

policy? If we answer these question in the negative, we must

affirm the decision of the trial court. 

It is the opinion of this court that the trial court correctly

dismissed count one. In her complaint, Ms. Stein alleged that

"[p]laintiff's employment was terminated for the sole reason that

Plaintiff tested positive on a single random urine drug screen

negligently performed by Defendant, Roche."10 There are no statutes

which prohibit an employer from discharging an employee for a

positive drug test. Because there is no statutory cause of action,

the answer to the first question is no.

The second question is more difficult. To explain, the cases

brought before Tennessee's courts have alleged retaliatory

discharge. The premise of an action for retaliatory discharge is

that an employer terminates an employee because that employee acted

in a manner which was detrimental to the employer. In other words,

the employer retaliates against the actions of the employee.

Further, the action of the employee is generally a protected action

or an action which society deems beneficial such that terminating

an employee for acting or failing to act violates public policy.

Examples of beneficial or protected actions include filing a

workers' compensation claim11 or a discrimination claim.12 Clearly,

this is not the situation presented by this case. 

Ms. Stein's complaint stated as follows:

18. Davidson's stated policy of terminating

employees for a single positive drug test result violates

the public policy of the State of Tennessee as expressed

in:

(a) Article I §8 of the Tennessee

Constitution which guarantees citizens of this
11

state the right to privacy.

(b) Article I §7 of the Tennessee

Constitution which protects individuals from

unreasonable searches and seizures.

(c) The common law of the State of

Tennessee, which prohibits intrusions on an

individual's privacy or solitude.

Clearly, Ms. Stein's contention is that Davidson's termination

policy, not its mandatory drug testing program, violates

Tennessee's public policy. Thus, the issue before this court is

whether an employer violates public policy, as evidenced by

constitutional, statutory, or regulatory provisions, when that

employer institutes a policy allowing it to discharge employees who

test positive for drugs.

In her brief, Ms. Stein argued that Davidson’s policy of

terminating employees for a single positive drug test result

violated public policy because there were no safeguards to ensure

the accuracy of the result or to prevent the collection method from

being too intrusive. In other words, Ms. Stein’s argument in her

brief was that both Davidson's termination policy and Davidson's

method of obtaining the test results violated the public policy of

this state. In her complaint, however, Ms. Stein only alleged that

Davidson's termination policy violated the public policy. Because

this appeal concerns a motion to dismiss, our analysis is

constrained by the allegation found in the pleadings.

While the method in which Davidson conducted the test may

violate some public policy in favor of accuracy and minimal

intrusion, Davidson's policy of terminating employees who test

positive for drugs does not violate any public policy known to this

court. To the contrary, Tennessee's public policy is in total

opposition to drug use in the workplace. 

Ms. Stein insists that the state’s public policy against

terminating employees who test positive for drugs can be found in
13 Tenn. Code Ann. §49-6-4213 (1990).

14 Tenn. Code Ann. § 41-1-122 (1990). 

15 Tenn. Code Ann. § 50-7-302(a)(9)(Supp. 1995).

12

the personal privacy protections of article 1, sections 7 and 8 of

the Tennessee Constitution. Her contention that Tennessee’s Bill

of Rights protect the rights of citizens is correct, however, the

Tennessee Bill of Rights protects against governmental

interference. Freshwater v. State, 2 Tenn. Crim. App. 314, 320,

453 S.W.2d 446, 449 (1969), cert. denied, 400 U.S. 840 (1970).

Recognizing this fundamental principal of constitutional

interpretation, other courts have held that state constitutions are

not sources of public policy in wrongful discharge cases unless the

constitutional provision at issue directly addresses private

conduct. Borse v. Peace Goods Shop, Inc., 963 F.2d 611, 620 (3d

Cir. 1992); Gilmore v. Enogex, Inc., 878 P.2d 360, 365 (Ok. 1994).

State statutes and regulations may also provide the clear

public policy required for a wrongful discharge action.

Tennessee’s statutes, however, seem to favor the use of drug

testing. The Tennessee General Assembly has specifically

authorized drug testing for public school students13 and the

security personnel employed by the Department of Corrections and

Youth Development.14 In 1995, the General Assembly enacted a

statute providing that private sector employees are not entitled to

unemployment compensation if they left their most recent work

"either to avoid taking a drug or alcohol screening test, or after

receiving a positive result to a drug or alcohol screening test."15

Some courts have even looked to the common law as a source of

the clear public policy. These courts concluded that the state’s

recognition of a common law action for invasion of privacy supplied
13

the clear public policies needed to support a wrongful discharge

cause of action. See Borse, 963 F.2d at 620-22; Hennessy v.

Coastal Eagle Point Oil Co., 609 A.2d 11, 17-9 (N.J. 1992). The

courts of Tennessee have never gone this far. The Tennessee

Supreme Court has stated that "clear public policy" is to be found

in an "unambiguous constitutional, statutory, or regulatory

provision." Anderson, 857 S.W.2d at 557.

Ms. Stein’s wrongful discharge claim fails to state a claim

upon which relief can be granted because she has not pointed to any

clear public policy against terminating employees who test positive

for drugs. To the contrary, creating a drug free work environment

in the public and private sector is completely consistent with the

State of Tennessee’s public policy.

IV. Invasion of Privacy

The second count of Ms. Stein's complaint alleged the

following: 

24. By requiring Plaintiff to submit to a random drug

test which has no relation to Plaintiff's duties as an

employee of Davidson, Davidson has tortiously intruded

into Plaintiff's privacy. 

25. . . . The intrusion into Plaintiff's personal and

private habits is in violation of Plaintiff's

constitutional and common law rights.

These allegations reveal that Ms. Stein premised her invasion of

privacy claim on two bases; one constitutional and one common law.

The trial judge dismissed the entire count holding "that the second

count of the Complaint d[id] not allege the state action required

to support the constitutional claim of invasion of privacy. . . ."

In her brief, Ms. Stein argued that it is not necessary for a

plaintiff to allege state action because Tennessee recognizes a

common law right of action for invasion of privacy against a

private defendant. Thus, it is Ms. Stein's contention that the
14

trial judge could not have dismissed her common law claim for lack

of state action.

In order to establish a violation of the constitutional right

to privacy, a party must allege state action, however; a cause of

action for tortious invasion of privacy is not dependant on state

action. See Ensor v. Rust Eng’g Co., 704 F. Supp. 808, 816 (E.D.

Tenn. 1989); Martin v. Senators, Inc., 220 Tenn. 465, 471, 418

S.W.2d 660, 663 (1967)(stating when an individual is liable for

tortious invasion of privacy). Thus, the trial court erred in

dismissing count two of Ms. Stein's complaint in its entirety on

this basis.

Ms. Stein's complaint included allegations involving two

invasion of privacy theories. The first was that Davidson invaded

her privacy by intruding into her seclusion. Second, she contended

that Davidson publicly disclosed private information by telling

certain persons about the results of her drug test.

A. Public Disclosure of a Private Fact

In a 1967 case, the Tennessee Supreme Court defined the tort

of invasion of privacy as follows: "'A person who unreasonably and

seriously interferes with another's interest in not having his

affairs known to others or his likeness exhibited to the public is

liable to the other.'" Martin, 418 S.W.2d at 663 (1967) (quoting

RESTATEMENT OF TORTS §867 (1939)). The court then went on to find that

"liability exists only if the conduct is such that a defendant

should have realized it would be offensive to persons of ordinary

sensibilities; and that it is only where the intrusion had gone

beyond the limits of decency that liability accrues. . . ." Id. at

664; see also Swallows v. Western Elec. Co., 543 S.W.2d 581, 583
15

(Tenn. 1976); Fann v. City of Fairview, 905 S.W.2d 167, 170 (Tenn.

App. 1994); Dunn v. Moto Photo, Inc., 828 S.W.2d 747, 752 (Tenn.

App. 1991).

In 1987, the Court of Appeals for the Western Section

determined that a plaintiff, who had alleged public disclosure of

a private fact, failed to establish that the defendant had made the

information public. The court determined that, in order to

successfully assert a public disclosure claim, the plaintiff had to

establish that "the matter is made public, by communicating it to

the public at large, or to so many persons that the matter must be

regarded as substantially certain to become one of public

knowledge." Gentry v. E. I. DuPont De Nemours and Co., 1987 WL

15854, at *3 (Tenn. App. 18 August 1987)(quoting RESTATEMENT (SECOND)

OF TORTS § 652(d) cmt. a (1976)). They then found that the facts

established that only a few employees had heard the information and

that the defendant instructed them not to repeat it. Thereafter,

the court upheld the finding of the trial court in favor of the

defendant. Id. at *4.

The only allegation regarding the extent of the disclosure

stated as follows:

Contrary to the requirement of confidentiality in

Davidson's alcohol/drug testing policy, the results of

Plaintiff's drug test were disclosed to one of

Plaintiff's peers and to one of Plaintiff's subordinates.

Upon information and belief, Plaintiff believes that

these results have been disclosed to additional employees

of Davidson. The results of Plaintiff's drug test were

revealed to employees who did not have a legitimate

interest in having this information available.

Construing the complaint liberally, one finds that Ms. Stein failed

to allege the disclosure necessary to state a cause of action for

public disclosure of a private fact. She alleges that Davidson

disclosed the information to only two people. Further, the

allegation on information and belief does not allege the necessary
16

disclosure because it does not necessarily follow that Davidson

communicated the information to so many people that it is

substantially certain to become public knowledge. Because Ms.

Stein failed to allege a necessary element of the cause of action,

the court correctly dismissed the claim.

B. Intrusion into Seclusion

The courts of this state have held that a plaintiff may waive

his or her right to privacy and, thus, waive their right to bring

an action for an invasion of that right. Martin, 418 S.W.2d at

662-64; see Langford v. Vanderbilt Univ., 199 Tenn. 389, 403-04,

287 S.W.2d 32, 39 (1956). "A waiver or relinquishment of this

right, or of some aspect thereof, may be implied from the conduct

of the parties and the surrounding circumstances." Martin, 418

S.W.2d at 663 (quoting 41 AM. JUR. p. 937). It is the opinion of

this court that Ms. Stein waived her right to bring an action

against Davidson for intruding into her seclusion.

It is Ms. Stein’s contention that the "[e]mployees were forced

to consent to random drug testing or risk immediate termination."

Nevertheless, she did consent to the testing. Further, there were

no allegations that she objected to the test when asked to sign the

form or when selected for the test. In addition, she did not

allege that she sought other employment after having to sign the

form. 

Even if we were to find that Davidson "forced" Ms. Stein to

sign the consent form, our conclusion would be the same. To

explain, Ms. Stein began working for the hotel in June 1989, and

Davidson instituted the drug policy in February 1992. Ms. Stein

continued to work at the hotel for over two years even though she
17

knew the nature of the test and that Davidson could choose her for

a test at any time. There is no evidence that she was dissatisfied

with her employment or that she intended to find other work. In

fact, the complaint established that the quality of her work was

above average. 

We are of the opinion that Ms. Stein’s conduct and the

surrounding circumstances established that she waived her right to

bring this action. Thus, the trial court properly dismissed count

two of Ms. Stein’s complaint.

V. Conclusion

For the foregoing reasons, we are of the opinion that the

decision of the trial court should, in all respects, be affirmed.

The judgment of the trial court is therefore affirmed with costs on

appeal assessed to plaintiff/appellant, Evelene N. Stein, and the

cause is remanded to the trial court for any further necessary

proceedings.

______________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

______________________________

HENRY F. TODD, P.J., M.S.

______________________________

WILLIAM C. KOCH, JR., JUDGE