# FILED May 8, 1996 Cecil W. Crowson Ap pellate Cou rt 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 AP PEALS OF TE NNESSEE MIDDLE SECT ION AT NASH VILLE

APPEAL FROM

THE FIRST CIRCUIT COURT OF DAVID SON COUNTY AT NASHVILL E, TENNESSE E

THE HONORAB LE 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. L EWIS, JUDGE2 

### OPINION T his is an appeal by plaintiff/appellant, Evelene N. St ein , froma judgment dismissing five of the seven claims alleged by Ms. Steinagainst 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 dru g and alcohol testing program. The program included pre-employment testing, reasonable suspiciontesting, 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 Davidsonwould immediately terminate them if the y failed to sign t he form. Further, Ms. Stein claimed that she signed the for m b ased on this perceived threat and that she did not r ealize th e formreleased Davidson and the testing facilityfrom "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. Steinthat she had tested positive for drugs. Later that day, Ms. Steinmet with other Davidson managers and denied any drug use. In3

her complaint, Ms. S tei n 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 c omplaint 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) fa ilure to pay Ms. Stein her earned vacat ion 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 motionin part and denying it in part. The c ourt gr anted Davidson's motion to dismiss for failure to state a claim upon whichrelief 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 seventhcount . Pur suant to Tennessee Rule of Civil Procedure 54.0 2, the court found that there were no just reasons for del a y and held that the order was final.

Ms. Stein filed her notice of appeal with the cler k of this1 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 th e 9 J une 1995 order dismissing counts one, two, and three of her complaint. Later, in her brief, Ms. Stein voluntarilydismissed 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 dischar g e may be premised upon the termination of employment inviolation of an employee's constitutional rights. II. Whether a cause of action for the tortious invasion of privacy requires state act ion 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 privacyinterest surrounding human procreation, 1 the
care and custody of children, 2 and consensual sexual activity between adults. 3 The rig ht to personal autonomy is extremely important in light of the growing intrusiveness of today’s society. Invasions of privacy involve interferences with a n individual’s interest “ in leading, to some reasonable extent, a secluded and private life, free from the prying eyes, ears and publications of other s.” See R ESTATEMENT (S ECOND ) OF T ORTS , § 652A cmt. b (19 76) . 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. R ESTATEMENT (S ECOND ) OF T ORTS , § 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 b y th e government or a subsidiary of the government. Experience teaches us that personal privacy is5

threatened by the almost insatiable information gathering appetites of not only gov ernments but of private interests as well. Wilkinsonv. 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 informationand 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 fa ilur e to exclude affidavits, pre sented by both parties, converted the Rule 12.02(6) motio n t o dismiss into a Rule 56 motio n fo r 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 H old ing Co. , 902 S.W.2d 946, 952 (Tenn. App. 1995). That is preciselywhat happened in this case. The relevant portion of the trial court's order provided: In ruling upon Dav idson' s Motion as it pertains to the seventhcount of the Complaint, the Court has considered the Affidavit of Casey Stovall submitted by Davidson and has considered the Affidavit of Ms. Stein. T here fore,6

the Court treats the Motion as it pertains to the seventh count of the Complaint as a Motion for Summary Judgment pursuant to Rul e 56 of the Tennessee Rules of Civil Procedure. As to counts on e, 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 seventhcount 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 whichf orm t he basis of this appeal. Therefore, this court must use the standard of review applicable to Rule 12.02(6) motions. In reviewing an app eal 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 liberallyin favor of the plaintiff, ta king a ll of the allegations of fact therein as true. Randolphv. 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 historyof t his 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 retaliat ory discharge. Specifically, the action recognized bythe court allowed an employee to bring a suit against an employer who had terminated the employee for filing a worker's4 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. P AGE K EETON ET AL ., P ROSSER AND K EETON ON THE L AW OF T ORTS §130, at 1029-30 (5th ed. 1984); 82 A M . J UR . 2 D Wrongful Discharge § 11 (1992). 7 compensationclaim. Id. at 443-45. In coming to its final decision, the court stated as follows: [T]he Workers' Compensation Lawis a comprehensive scheme enacted to provide a certain and expeditious remedy for injured employees. It r efle cts a careful balancing of the interests of employer and employee. . . . Retaliatorydischarges 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. . . . I n ou r opinion, a cause of action for retaliatory discharge, although not explicitly created by the s tatute, is necessary to enforce the duty of th e employer, to secure the ri ghts of the employee and to carryout th e inte ntion 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 decisionhad not created a new exception to the employment at will doctrine, but "merely recognized that implicit with in 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).
Throughthe years, the supreme court has refined the test for determining whether the courts should recognize a cause of action for wrongf ul d ischarge. 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.2 d 555, 557 (Tenn. 1993); Hodges , 833 S.W.2d at 899; Harney , 784 S.W.2d at 922- 23.

Beca use 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 c rea tion of public policy, the Tennessee Supreme Court stated as follows:

This court can know nothing of public policy except fromt he 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. Considerat ions o f that sort must, in general, be addressed to the legislature. Questions of policydetermined there are concluded here. Ther e are cases, it is true, in which arguments drawnfrom public policymust have large influence; but these are cases in which the cou rse of legislation and administration do not leave any doubt upon the question wh at 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 Ass embly has enacted various statutes which prohibit
employers from terminating employees for certain reasons. Fo r example, an employer may not terminate an employee because the employee served as a juror 5 ; because an employee is of a particular6 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, reli gion, sex, age, or national origin 6 ; because an employee is di sabled 7 ; because an employee refused to participate in or refused to rem ain silent about illegal activities 8 ; or because an employee filed a complaint, instituted
a proceeding or investigation, testi fied in a proceeding, or exercised a right pursuant to the Occupational Safet y 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 ca use 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 constit u tional, 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 complai nt failed to state a claim upon which relief c an b e 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 M s. St ein allege the necessary elements? Second, did count one of Ms. Stein’s complaint allege a wrongful discharge actionbased on the theory that Davidson violated clear public10 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 mus t 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 negligentlyperformed by Defendant, Roche." 10 There are no statutes whi ch pro hibit 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 employe e . 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 be nefi cial or protected actions include filing a workers' compensation claim 11 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 policyof the State of Tennessee as expressed in: (a) Article I §8 of the Tennessee Constitutionwhich guarantees citizens of this11 state the right to privacy.

(b) Article I §7 of the Tennessee Constitutionwhich 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 content ion i s that Davidson's termination policy, not its mandatory drug testing program, violat e s 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 Davi dson’s policy of terminating employees for a single positiv e dr ug test result violated public policy because there were no safeguards to ensure the accuracyof 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 Davi dson'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 conce rns 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 po licy of terminating employees who test positive for drugs does not violate anypublic 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 in13 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 statut es a nd regulations may also provide the clear public policy required for a wrongful di schar ge action. Tennessee’s statutes, however, seem to favor th e use of drug testing. The Tennessee Gen eral Assembly has specifically authorized drug testing for public school students 13 and the
se curi typersonnel employed by the Department of Corrections and YouthDevelopment. 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 recognitionof a common law action for invasion of privacy supplied13

the cl ear public policies needed to support a wrongful discharge
ca use 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 t h e following: 24. Byrequiring Plain tiff to submit to a random drug test which has no relation to Plainti ff's d uties as an employee of Davidson, Davidson has tortiously intruded into Plaintiff's privacy. 25. . . . The intr usio n into Plaintiff's personal and private habits is in violation of Plaintiff's constitutional and common law rights. These allegations reveal that Ms. S tein p remised her invasion of privacyclaim 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
commonlaw right of action for invasion of privacy against a private defendant. Thus, it is Ms. Stein's contention that the14

trial judge could not have dismissed her common law claimfor 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 invasionof privacy theories. The first was that Davidson invaded her privacy by intruding into her seclusion. Second, she contended that Davids o n 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 seriouslyinterferes 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 R ESTATEMENT OF T ORTS §867 (1939)). The court then went on to find that "liabilityexists 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 liabilityaccrues. . . ." Id. at 664 ; see also Swallows v. Western Elec. Co. , 543 S.W.2d 581, 58 315

(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 Se ctio n determined that a plaintiff, who had alleged public disclosure of
a private fact, failed to establish that the defendant had made the informationpublic. The court determined that, in order to successfullyassert 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 manypersons 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 R ESTATEMENT (S ECOND )
OF T ORTS § 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: Contraryto the requirement of confidentiality in Davidson's alcohol/drug testing policy, the results of Plaintiff's drug test were disclos e d to one of Plaintiff's peers and to one of Plaintiff's subordinates. Uponinformation 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 allegationoninformation and belief does not allege the necessary16

disclosure because it does not necessarily follow that Davidson communicated th e information to so many people that it is substantiallycertain to become pu blic knowledge. Because Ms. Steinfailed 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. Van derbilt 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 circumst anc es." Martin , 418 S. W.2d a t 663 (quoting 41 AM . J UR . p. 937). It is the opinion of this cou rt that M s. 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 formor when selected for the test. In addition, she did not allege that she sought other employment after having to sign the form.

Evenif we were to find that Davidson "f orced " Ms. Stein to sign the conse nt form, our conclusion would be the same. To
ex plain, Ms. Stein began working for the hotel in June 1989, an d Davidson instituted the drug policy in February 1992. Ms. Stein continued to work at the hotel for over two years even though she17

knewthe nature of the test and that Davidson could choose her for
a test at any time. There is no evidence that she was dissatisfied withher 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