IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

February 22, 2006 Session

ANTHONY FRANKLIN v. SWIFT TRANSPORTATION CO., INC.

A Direct Appeal from the Circuit Court for Shelby County

No. CT-006832-02 The Honorable Kay S. Robilio, Judge

No. W2005-01062-COA-R3-CV - Filed July 12, 2006

This is a retaliatory discharge case. The former employee of a trucking company filed suit against

the trucking company for statutory and common law retaliatory discharge, alleging that his

employment was terminated due to his refusal to violate a Tennessee Department of Safety

regulation that required the truck to carry an original “cab card” showing registration. The employer

had directed the employee truck driver to deliver merchandise to a customer, assigning him a

particular truck. The original cab card for the truck could not be found, so the employer gave the

employee a photocopy of the cab card. The employee refused to drive the truck with only a

photocopy, and another truck could not be located. The next day, the employee truck driver was

fired. The truck driver sued the employer trucking company for retaliatory discharge, alleging that

his employment was discharged for refusing to participate in an illegal activity. The Shelby County

Circuit Court entered judgment on a jury verdict in favor of the employee. We reverse, finding that

the employee’s refusal to perform the assigned work based on the regulation requiring the original

cab card, as opposed to a photocopy, did not further important public policy concerns, and therefore

would not support a claim of retaliatory discharge.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed

HOLLY M. KIRBY,J., delivered the opinion of the court, in which DAVID R. FARMER,J., joined. W.

FRANK CRAWFORD, P.J., W.S., dissented.

Jeff Weintraub, J. Gregory Grisham and C. Michael Becker of Memphis, Tennessee for Appellant,

Swift Transportation, Inc.

Donald A. Donati and William B. Ryan of Memphis, Tennessee for Appellee, Anthony Franklin
Franklin was originally hired by M.S. Carriers. In the summer of 2001, Swift Transportation Co., Inc. acquired 1

M.S. Carriers. M.S. Carriers was voluntarily dismissed from this action by Order of the trial court on March 21, 2005.

The employer will be referred to herein as “Swift.”

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OPINION

Plaintiff/Appellee Anthony Franklin was hired by Defendant/Appellant Swift Transportation

Co., Inc. (“Swift”) in October 2000 as an over-the-road driver. After completing a thirty-day 1

training program, Franklin was assigned as a driver for a dedicated account for the Dollar Tree

stores, a chain of convenience-type retail stores. In this position, the driver delivers merchandise

regionally to store locations, many in small towns. The assignment required a highly skilled or very

experienced driver. For an account such as this, a driver in Memphis would be able to be home with

his family three to four nights a week, normally on the weekends. This would give the driver more

time at home than a “regular line haul,” for which a driver would typically be away from home three

weeks at a time. In the normal course of his employment as a dedicated Dollar Tree driver, Franklin

would receive a dispatch call, and then go to the Dollar Tree distribution facility in Olive Branch,

Mississippi to pick up a trailer loaded with merchandise to be delivered to a Dollar Tree store in the

southeast region of the United States. Generally, Franklin drove two shipments a week and grossed

between $700 and $1,000 per week.

The Dollar Tree account was a lucrative, important account for Swift. Dollar Tree had very

high “on time” requirements for its merchandise deliveries, and Swift would be penalized if its ontime performance fell below ninety-five percent. Failure to maintain an on-time delivery schedule

would also affect Swift’s ability to keep the account. It was important for a driver on an account

such as this to pick up his trailer of merchandise by the appointed time so that he would get the

required eight-hour rest break to complete the run.

Swift at that time was a “forced dispatch” company, which meant that, once a driver was

assigned to deliver a load, he could not refuse to do so unlessthere was an emergency. Specifically,

dedicated drivers for Dollar Tree were not permitted to refuse to deliver a load.

On December 2, 2001, Franklin received a dispatch call and went to the Dollar Tree facility

in Olive Branch, Mississippi. There, Franklin was to pick up a trailer of merchandise and deliver

it to a Dollar Tree location in the Dallas, Texas area by the next morning. After picking up the

trailer, Franklin went to the Swift terminal in Memphis, Tennessee, to get fuel and have his truck

inspected by a maintenance employee. When he arrived, Franklin was told by the maintenance

employee that his truck needed to be taken out of service for routine maintenance that was due on

the vehicle. Franklin then contacted the weekend dispatcher, Kim Rogers (“Rogers”), to inform her

that his truck had been taken out of service. Consequently, Rogers assigned Franklin a loaner truck,

truck #16064. 

Franklin located truck #16064, and performed the mandatory pre-trip inspection of the truck,

as required by Swift. The inspection included checking all paperwork in the truck, such as
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maintenance and registration permits kept in the truck’s permit book. The truck checked out

satisfactorily, except that truck #16064's International Registration Plan card (“IRP cab card”) was

missing. The IRP cab card is a pink-colored motor registration card issued by the State of

Tennessee, listing all of the states in which the vehicle is registered to operate.

Franklin contacted Rogers again to tell her that the original IRP cab card was missing from

truck #16064. In response, Rogers told Franklin to “run with [the truck] anyway.” Franklin told

Rogers that he did not feel comfortable driving the truck without the original IRP cab card. Rogers

told Franklin to contact the road maintenance records department to find out whether they had a

back-up original of the IRP cab card for truck #16064. Franklin contacted the road maintenance

records department and was told that they only had a black and white photocopy of the IRP cab card

for truck #16064. Franklin called Rogers and told her that the road maintenance records department

only had a photocopy of the IRP cab card. Rogers told Franklin to take truck #16064 with the

photocopy of the IRP cab card. When Franklin expressed reluctance, she assured him that driving

the truck with a photocopied cab card would not be a moving violation or a D.O.T. violation, that

it would not go on his driving record, and that if he were stopped for it and any fine was assessed,

or anything else happened as a result of only having a copy, the company would pay for it. Despite

this, Franklin refused to drive the truck without the original IRP cab card and asked Rogers to locate

another loaner truck. Rogers acquiesced, and assigned Franklin a second loaner truck.

Considerable time had passed by this point. Franklin searched for the second loaner truck,

but was unable to locate it on the Swift lot. Finally, Franklin called the dispatch office to tell them

that he could not find the second loaner truck. Franklin was then informed by the dispatch staff that

the delivery load had been taken off of him, and that he needed to contact the account manager for

the Dollar Tree account the next morning. Before leaving the Swift terminal, Franklin discovered

that the second loaner truck that he had been trying to locate on the Memphis Swift lot was actually

in Brownsville, Tennessee.

The next morning, Monday, December 3, 2001, Franklin went to the Swift offices to meet

with the account manager for the Dollar Tree account, Montel Maners. When he arrived at the

offices, Franklin learned that he had been terminated from his job. That morning, at 8:05 a.m.,

Debbie Ashley, Franklin’s immediate supervisor, made an entry into Swift’s computer system that

Franklin had been terminated for refusing a load. After learning of his termination, Franklin went

to the Swift Employee Relations department. Franklin was told to write a summary of the events

that occurred, which he did. Franklin was then told that Swift employee Jerry Stairs (“Stairs”)

needed to review the appeal letter, and that Franklin would be contacted after Stairs’ review. On

December 4, 2001, Franklin contacted Stairs to discuss his appeal. A meeting was set for December

5, 2001. At the December 5, 2001 meeting, Stairs told Franklin that he had contacted Montel

Maners, but nothing had been resolved. On December 31, 2001, Franklin received a separation

notice from Swift, stating that he had quit his employment to take another job.

On December 2, 2002, Franklin filed a lawsuit against Swift for statutory and common law

retaliatory discharge, alleging that his employment was terminated due to his refusal to violate safety
Swift’s brief explains that the trial court later stated that Franklin had established the existence of a clear

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public policy in Tennessee that it was unlawful to operate a commercial motor vehicle without the original of the IRP

cab card in the cab. From our review of the record, however, Swift’s citation to the record for this proposition is

incorrect. This Court was unable to locate any clarification from the trial court explaining the legal bases for denying

Swift’s motion for summary judgment except for the trial court’s statement that it felt it was a “colorable claim.”

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provisions of Tennessee Motor Carriers Act. Franklin sought back pay, front pay in lieu of

reinstatement, and compensatory and punitive damages. Swift answered and asserted the affirmative

defenses that Franklin failed to state a claim upon which relief could be granted, that Franklin’s

claims were pre-empted by the Surface Transportation Assistance Act of 1982, 42 U.S.C. § 31105,

and that Franklin’s employment with Swift would have ended regardless of his refusal to drive a

truck that was allegedly not in compliance with the Tennessee Motor Carriers Act and its

implementing regulations. 

On October 15, 2004, Swift filed a motion for summary judgment, arguing that Franklin

could not establish a cause of action for retaliatory discharge because Franklin’s refusal to drive

loaner truck number #16064 was a lawful reason for Swift to terminate his employment. Swift

asserted that Franklin did not have sufficient reason for refusing to take the truck because he

personally did not know of any inspectors who would not accept a photocopy of the IRP cab card,

as opposed to the original IRP cab card. On January 28, 2005, the trial court, after hearing arguments

from counsel, denied Swift’s motion for summary judgment. On February 8, 2005, the trial court

entered an order denying Swift’s motion for summary judgement; absent from the order was any

explanation of the trial court’s legal conclusions. On March 14, 2005, Swift filed a motion for the

trial court’s statement of legal grounds for its denial of Swift’s motion for summary judgment.2

The jury trial began on March 21, 2005. At the close of Franklin’s case, Swift made a motion

for directed verdict pursuant to Rule 50 of the Tennessee Rules of Civil Procedure. Swift argued that

Tennessee law did not require the original, as opposed to a copy, of the IRP cab card, and that

driving a commercial motor vehicle without an original IRP cab card did not rise to the level of clear

public policy in Tennessee relating to health, safety and public welfare. The trial court denied

Swift’s motion for directed verdict. At the conclusion of the proof, Swift renewed its motion for

directed verdict, based on the same argument. The trial court again denied Swift’s motion for

directed verdict. Following closing arguments, the jury returned a verdict in favor of Franklin, and

awarded Franklin lost wages in the amount of $51,878.00.

On April 27, 2005, Swift filed a motion for judgment notwithstanding the verdict, or in the

alternative, for a new trial. Swift argued that the trial court erred in denying its motion for summary

judgment, as well asitslater motions for directed verdict, since the requirement to keep the original,

as opposed to a photocopy, of the IRP cab card in the truck cab did not constitute a clear and

unambiguous public policy of the State of Tennessee relating to safety, health, or public welfare. 

For this reason, Swift argued, a termination based on a refusal to drive a truck without the original

IRP cab card did not constitute actionable retaliatory discharge or whistleblowing under the

Tennessee common law or the Tennessee Public Protection Act. On May 2, 2005, Franklin filed a

motion for an order awarding prejudgment interest, which was denied by the trial court. On May 25,
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2005, the trial court entered an order denying Swift’s motion for judgment notwithstanding the

verdict, or in the alternative, for a new trial. From these orders, Swift now appeals.

On appeal, Swift asserts that the trial court erred in (1) failing to grant Swift’s motion for

summary judgment; (2) failing to direct a verdict in Swift’s favor; and, (3) denying Swift’s motion

for judgment notwithstanding the verdict. Swift makes the same argument before this Court that it

made to the trial court, that is, that the termination of an at-will employee for refusing to operate a

commercial motor vehicle with a photocopy of the IRP cab card, as opposed to the original, does not

violate a clear and unambiguous public policy in the State of Tennessee related to health, safety, or

welfare sufficient to support a claim for retaliatory discharge under the common law or the

Tennessee Public Protection Act. In response, Franklin argues that his refusal to operate a

commercial motor vehicle without the original of the IRP cab card as required by Tennessee law was

the equivalent of refusing to participate in illegal activities, and, was therefore sufficient to establish

a claim for retaliatory discharge under the common law or the Tennessee Public Protection Act.

Franklin also raises an issue on appeal, asserting that the trial court erred in denying his motion for

prejudgment interest.

Asto Swift’s assertion that the trial court erred in denying its motion for summary judgment,

that issue will not be reviewed on appeal. “A trial court's denial of a motion for summary judgment,

predicated upon the existence of a genuine issue of material fact, is not reviewable on appeal when

a judgment is subsequently rendered after a trial on the merits.” Bradford v. City of Clarksville, 885

S.W.2d 78 (Tenn. Ct. App. 1994). Therefore, the denial of Swift’s summary judgment motion is not

reviewable on appeal.

Swift asserts on appeal that the trial court erred in failing to direct a verdict in its favor, at

the close of Franklin’s proof, and, again, when Swift renewed its motion for directed verdict at the

conclusion of the proof, on the basis that the regulatory infraction by Swift was insufficient to

support Franklin’s claim of retaliatory discharge. A directed verdict under either Tenn. R. Civ. P.

50.01 or 50.02 is appropriate only when, after taking the strongest legitimate view of the evidence

favoring the opponent and drawing all reasonable inferences in favor of that opponent, reasonable

minds cannot differ as to the conclusions to be drawn from the evidence. Alexander v. Armentrout,

24 S.W.3d 267, 271 (Tenn. 2000); Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994); Ingram

v. Earthman, 993 S.W.2d 611, 627 (Tenn. Ct. App. 1998). A post-trial motion for entry of

judgment in accordance with a motion for a directed verdict made during the trial is gauged by the

same standard. Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn. 1977) (citing Vaughan v. Shelton,

514 S.W.2d 870, 874 (Tenn. Ct. App. 1974);Keller v. East Tennessee Production Credit Ass'n, 501

S.W.2d 810, 812 (Tenn. Ct. App. 1973)). Under this standard of review, we address the substantive

issue raised by Swift on appeal, namely, whether Franklin can sustain a cause of action for retaliatory

discharge for his refusal to drive Swift’s truck with a photocopy of the IRP cab card, rather than the

original cab card.

The employment-at-will doctrine is a bedrock of Tennessee common law. Under this

doctrine, employment for an indefinite term may be terminated by either the employer or the
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employee at any time, for good cause, bad cause, or no cause at all. Guy v. Mutual of Omaha Ins.

Co., 79 S.W.3d 528, 534-35 (Tenn. 2002). This traditional rule, however, is not absolute;

restrictions have been imposed on the right of the employer to discharge an employee. Id. at 535.

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

Court indicated its willingness to recognize a claim for retaliatory discharge where the employee is

discharged in contravention of public policy. See also Guy, 79 S.W.3d at 535; Clanton v. CainSloan Co., 677 S.W.2d 441 (Tenn. 1984). In Chism, the plaintiff alleged that he was discharged

because he insisted that his employer comply with the Internal Revenue Code. Chism, 762 S.W.2d

at 554. The Chism court discussed the parameters of a cause of action for retaliatory discharge:

It is obvious that the exception cannot be permitted to consume or eliminate the

general rule. . . . To be liable for retaliatory discharge in cases such as this, the

employer must violate a clear public policy. Usually this policy will be evidenced

by an unambiguous constitutional, statutory or regulatory provision.

Id. at 556. The Chism court went on to recite “[e]xamples of clearly defined public policies which

warrant the protection provided by this cause of action. . . .” Id. These examples included cases in

which the employee was discharged for refusing to commit perjury, for insisting on obeying a lawful

subpoena, for refusing to seek to be excused from jury duty, for refusing to falsely certify the

required testing of consumer products, and for reporting consumer fraud violations. Id. (citations

omitted). The Chism court commented: “In each of these cases . . . very specific statutory violations

were charged, and usually the employee’s personal exposure to civil or criminal sanctions was

emphasized.” Id. The court found the plaintiff’s allegations in his complaint insufficient to support

a claim of retaliatory discharge, stating: “In order to state a claim for relief for this very exceptional

tort action, the pleader must show clear violation of some well-defined and established public

policy.” Id.

Two years after the decision in Chism, the Tennessee legislature codified the common-law

cause of action for retaliatory discharge by enacting the Tennessee Public Protection Act, which

currently provides:

(a) No employee shall be discharged or terminated solely for refusing to participate

in, or for refusing to remain silent about, illegal activities.

* * *

(c) As used in this section, “illegal activities” means activities that are in violation

of the criminal or civil code of this state or the United States or any regulation

intended to protect the public health, safety or welfare.

(d)(1) Any employee terminated in violation of Subsection (a) shall have a cause of

action against the employer for retaliatory discharge and any other damages to which

the employee may be entitled. 

Tenn. Code Ann. § 50-1-304(a), (c) and (d)(1) (2005). By enacting the Public Protection Act, the

legislature recognized the importance of encouraging employees to report violations “of those laws
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and regulations ‘intended to protect the public health, safety or welfare.’ ” Guy, 79 S.W.3d at 537.

In Guy, the court held that the Public Protection Act “is cumulative to, and does not preempt, the

common law tort remedy for retaliatory discharge claims where the employee was discharged for

reporting illegal or unethical conduct.” Id.

In this case, Franklin asserts a claim for retaliatory discharge under both the common law and

the Tennessee Public Protection Act. To prevail under the Public Protection Act, the plaintiff must

establish (1) his status as an employee of the defendant employer; (2) his refusal to participate in,

or remain silent about, “illegal activities” as defined under the Act; (3) his termination; and (4) an

exclusive causal relationship between his refusal to participate in or remain silent about illegal

activities and his termination. T.C.A. § 50-1-304. The elements required in order to prove a

common law retaliatory discharge claim are similar; the plaintiff must show (1) that an employmentat-will relationship existed; (2) that he was discharged; (3) that the reason for his discharge was that

he attempted to exercise a statutory or constitutional right, or for any other reason which violates a

clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision;

and (4) that a substantial factor in the employer’s decision to discharge him was his exercise of

protected rights or his compliance with clear public policy. Crews v. Buckman Laboratories Int'l,

Inc., 78 S.W.3d at 862; see also Guy, 79 S.W.3d at 535; Mason v. Seaton, 942 S.W.2d 470, 474

(Tenn. 1997); Stein v. Davidson Hotel Co., 945 S.W.2d 714, 717 (Tenn. 1997); Hodges v. S.C. Toof

& Co., 833 S.W.2d 896, 899 (Tenn. 1992); Chism, 762 S.W.2d at 556.

On appeal, it is undisputed that Franklin was an employee of Swift and that he was

discharged. The jury found a causal relationship between his discharge and his refusal to drive the

loaner truck because it had a photocopy of the IRP cab card instead of the original, and Swift does

not assert on appeal that there was insufficient evidence to support this finding.

This appeal turns, then, on the final element, similar under the common law and the Public

Protection Act. Under the Public Protection Act, it must be found that the violation by the employer

constitutes an “illegal activity,” defined as “activities that are in violation of the criminal or civil

code of this state or the United States or [a] regulation intended to protect the public health, safety

or welfare.” T. C. A. § 51-1-304(c). Under the common law, the motivating factor for the discharge

must be the employee’s compliance with “a clear public policy evidenced by an unambiguous

constitutional, statutory, or regulatory provision.” Crews, 78 S.W.3d at 862. The issue becomes

whether Swift’s regulatory violation rises to this level.

A commercial vehicle such as the Swift truck at issue in this case must be licensed and

registered to operate in the State of Tennessee. Under Tennessee Code Annotated § 55-4-101(a)(2),

the registration and fees are a privilege tax which must be paid in order to operate in Tennessee.

Other states and jurisdictions require registration as well, which becomes a practical problem for

commercial vehicles operating in interstate commerce, because such vehicles would have to register

in numerous jurisdictions. Consequently, states of the United States and some provinces in Canada

adopted the International Registration Plan (“IRP”), a registration reciprocity agreement under which

the registration fees for an individual vehicle are allocated among the jurisdictions in which the
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vehicle operates. Under the IRP, the vehicle is issued one license plate and one registration, called

an IRP cab card, which shows that the vehicle is properly registered to operate in multiple

jurisdictions.

In this case, there is no allegation that the truck at issue did not meet proper safety standards,

that the required fees had not been paid, or that the vehicle was not properly registered. At issue is

the proof of such registration that was to be carried in the vehicle.

Tennessee Code Annotated § 55-4-108(a) states that a certificate of registration must be

carried in the vehicle, available to show to an employee of the Tennessee Department of

Transportation. Under this statute, the owner of the vehicle is permitted to keep in the vehicle either

the original certificate of registration or a copy of it. T.C.A. § 55-4-108(a) (1998).

The requirement for proof of registration is narrowed, however, by a regulation issued by the

Tennessee Department of Safety. The regulation states that the required proof of registration under

the IRP is “a Cab Card and Certificate of Registration for each vehicle so proportionally registered.”

Tenn. Dept. of Safety, Rule 1340-5-2-.01. The regulations address the proof of registration to be

carried in the vehicle: “1340-5-2-.02 Placement of Card. For a vehicle proportionally registered,

it is required that the original of the Cab Card be in the cab of the vehicle during its operation.”

Thus, while the statute appears to allow a copy of the proof of registration, the regulation requires

that the original IRP cab card be kept in the vehicle. This requirement is noted on the face of the

pink-colored cab card.

In this case, when Franklin inspected truck #16064 and discovered that the IRP cab card was

missing, he was given a black-and-white photocopy of the card and directed to make the Dollar Tree

run with the photocopied cab card. When Franklin expressed misgivings about this, he was assured

that operating the vehicle with a photocopy of the card was not a moving violation or a D.O.T.

violation, that it would not go on his driving record, and that if he were stopped because of the

photocopied card, Swift would pay any fine assessed. Nevertheless, Franklin refused and asked for

another truck. After trying to locate yet another truck, Swift finally took Franklin off of the

assignment.

Swift notes that this infraction, carrying a photocopy of the IRP cab card instead of the

original cab card, is not a “violation of the criminal or civil code” of Tennessee. See T.C.A. § 50-1-

304(c) (definition of “illegal activities”). Rather, it is a violation of a regulation which Swift

contends does not implicate “the public health, safety or welfare” under the Public Protection act and

does not rise to the level of a clear public policy evidenced by an unambiguous regulatory provision.

Id.; see Guy, 79 S.W.3d at 535. Therefore, it cannot support either a statutory or common law claim

of retaliatory discharge.

In response, Franklin argues that, pursuant to the Tennessee Supreme Court case of Mason

v. Seaton, 942 S.W.2d. 470,472 (Tenn. 1997), an employee can satisfythe second element of a claim

under the Tennessee Public Protection Act (the requirement of proving his refusal to participate in,
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or remain silent about, illegal activities) by showing that he had “reasonable cause to believe a law,

regulation, or rule has been violated or will be violated.” Id. Franklin maintains that he reasonably

believed that he needed to carry the original IRP cab card when operating his truck, and that his

belief was justified. At trial, Franklin recounted an occasion on which he was detained at a weigh

station in Kansas because he could not produce the original IRP cab card. Franklin contacted the

head of Swift’s permit department, Dora Griffin, who faxed a copy of the IRP cab card to the Kansas

inspector. The faxed copy was accepted and Franklin was allowed to proceed with his load. After

that incident, Griffin stressed to Franklin that the original cab card should remain in the truck,

because the Kansas officers did not have to accept a copy, and that he could be subjected to fines and

penalties for failing to have it. Griffin, who had been the head of Swift’s permit department for over

ten years, testified at trial that it was not “legal to run in any state without a cab card. . . . The law

on the registration, it says you must have the original in the permit book on the truck because copies

were not legal.” Franklin notes as well that the face of the IRP cab card contains language requiring

that the original IRP cab card be maintained in the cab during operation. Franklin asserts that his

belief that he would be breaking the law, subjecting himself to fines, penalties, and possible delay

if he operated truck # 16064 without the original IRP cab card, is sufficient to satisfy the

requirements under the Public Protection Act.

As to Franklin’s claim for common law retaliatory discharge, Franklin acknowledges that,

to be cognizable, a claim of common law retaliatory discharge must evidence a violation of “a clear

public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision. . . .”

Mason, 942 S.W.2d at 475 (citing Reynolds, 887 S.W.2d at 823). On appeal, Franklin does not

argue that Tenn. Comp. R. & Regs. 1340-5-2-.02, which requires the original cab card, is a clear

expression of Tennessee public policy; rather, the clear and unambiguous public policy that Franklin

asserts is the right of a Tennessee employee to be able to refuse to participate in an illegal activity

in the workplace. In support of this argument, Franklin cites Watson v. Cleveland Chair Company,

in which the Tennessee Supreme Court stated “that a cause of action for retaliatory discharge arises

when an at-will employee is terminated solely for refusing to participate, continue to participate, or

remain silent about illegal activities.” Watson v. Cleveland Chair Co., 789 S.W.2d 538, 544 (Tenn.

1989).

Franklin is, of course, correct in his assertion that the law of retaliatory discharge stems from

Tennessee public policy that an employee should not be placed in the moral, ethical and legal

dilemma of being forced to choose between reporting or participating in illegal activities and keeping

his job. See Henderson v. Corrs. Corp. of America, 918 F.Supp. 204, 210 (E.D. Tenn. 1996);

Griggs v. Coca-Cola Employees' Credit Union, 909 F.Supp. 1059, 1064 (E.D. Tenn. 1995). That

does not, however, end the inquiry. Under both the Public Protection Act and the common law, the

“illegal activity” or violation by the employer must implicate important public policy concerns as

well.

As noted above, the earliest Tennessee cases recognizing retaliatory discharge have

emphasized that it is an important, but narrow, exception to the employment-at-will doctrine. See

Chism, 762 S.W.2d at 556. More recent cases have underscored the qualified nature of the cause
The plaintiff in Guy did not assert a claim under the Public Protection Act, only under the common law. 79 3

S.W.3d at 535-36.

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of action, noting that retaliatory discharge is applicable only “in limited circumstances, [where]

certain well-defined, unambiguous principles of public policyconfer upon employees implicit rights

which must not be circumscribed or chilled by the potential of termination. Stein v. Davidson

Hotel, 945 S.W.2d 714, 717 (Tenn. 1997).

In Guy v. Mutual of Omaha Insurance Company, the court discussed at length the

requirement that the discharged employee demonstrate that his actions implicated important public

policy concerns. The plaintiff in Guy alleged that he was discharged because he reported to 3

authorities the fraudulent actions of an insurance agent who had misappropriated the funds of a

client. Guy, 79 S.W.3d at 531-33. He relied on Tennessee insurance statutes “as evidence of a clear

expression of the public policy in this state with respect to protecting the public from the fraudulent

activity of insurance agents.” Id. at 537. Under the heading “The Public Policy Interest of

Protecting Consumers From Insurance Fraud,” the court in Guy framed the issue as “whether the

plaintiff has asserted a ‘well defined and established’ public policy as the basis for his retaliatory

discharge claim.” Id. at 537. It observed that, under both the Act and the common law, the plaintiff

must prove that his actions “ ‘serve[] a public purpose [that] should be protected. So long as the

employees’ actions . . . seek to further the public good, the decision to expose illegal or unsafe

practices should be encouraged.’ ” Id. at 537 n.4. The Guy court emphasized that it was not enough

for the plaintiff to simply show that the employer violated a law or regulation, stating, “Our inquiry

. . . is not limited to whether a particular law or regulation has been violated; rather, our inquiry

focuses on whether some ‘important public policy interest embodied in the law has been furthered

by the whistleblowing activity.’ ” Id. at 538 (emphasis added) (quoting Gutierrez v. Sundancer

Indian Jewelry, 868 P.2d 1266, 1273 (N.M. 1993)). The Guy Court recognized the public policy

interest embodied in encouraging the reporting of the insurance agent’s fraudulent actions, quoting

an early case which recounted “painful cases . . . where . . . people have given up their scanty

earnings . . . because of unauthorized misrepresentations by unscrupulous agents. . . .” Id. (quoting

Independent Life Ins. Co. v. Rodgers, 55 S.W.2d 767, 770 (Tenn. 1933)).

Likewise, other appellate decisions on retaliatory discharge in this State have involved

activities which implicated an important public policy interest. See, e.g., Mason v. Seaton, 942

S.W.2d 470, 472 (Tenn. 1997) (plaintiff discharged for reporting hotel’s fire code violations and

dangerous working conditions); Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822 (Tenn. 1994)

(plaintiff discharged because he refused to violate regulation which requires that the driver of a

commercial motor vehicle inspect the vehicle and be satisfied that the vehicle is in safe operating

condition before it is operated on a public road); Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d

852, 865 (Tenn. 2002) (plaintiff discharged for reporting in-house counsel practicing law without

being properly licensed; court found “the existence of a clear public policy evidenced by the ethical

duty [under the Tennessee Code of Professional Responsibility] not to aid in the unauthorized

practice of law.”).
The DeSoto Court stated, 4

 We emphasize that this is not a case of “whistleblowing;”’ rather, it is a flat-out refusal to work and

therefore we view it differently. . . . We have instead a claim by an employee who refuses to work

based on his erroneous belief that what he was asked to do was a violation of California law.

957 F.2d at 658 (citations omitted).

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In this case, Franklin acknowledged at trial that he was aware that the Dollar Tree account,

for which he was a dedicated driver, was important to Swift, and involved time-sensitive deliveries

requiring highly-skilled drivers. It is undisputed that the employer at that time had a “forced

dispatch” policy under which a driver assigned a load was not permitted to refuse to do so unless it

was an emergency, and that in particular, dedicated drivers for the Dollar Tree account could not

refuse to deliver a load. Franklin was assured that driving the truck with a photocopy of the IRP cab

card would not be a moving violation or a D.O.T. violation, that it would not go on his driving

record, and that if he were stopped, Swift would pay any fines assessed. Despite all of this, when

Swift could not readily locate the original IRP cab card and gave Franklin a photocopy of the card

to put in the cab of the truck, Franklin refused to use the truck to deliver the Dollar Tree

merchandise.

Under the reasoning urged by Franklin, any regulatory infraction by an employer, no matter

how minor, can justify an employee’s refusal to perform his assigned duties. Indeed, it is hard to

imagine a more de minimus regulatory violation than the infraction on which Franklin bases his

claim of retaliatory discharge in this case, namely, having a photocopied cab card instead of the

original. The Court in Guy v. Mutual of Omaha stated clearly that we do not simply look at whether

a law or regulation has been violated, but “rather, our inquiry focuses on whether some important

public policy interest embodied in the law has been furthered” by the employee’s actions. 79 S.W.3d

at 538.

Finding that any regulatory infraction by an employer, no matter how minor, can support a

claim of retaliatory discharge would be a clear extension of the law, well beyond the boundaries of

any prior Tennessee decision. Such an extension of the law has been rejected by at least one other

state. In a similar case, DeSoto v. Yellow Freight Systems, Inc., 957 F.2d 655 (9 Cir. 1992), a th

plaintiff truck driver mistakenly thought that he could not operate his employer’s truck legally

because it had expired registration papers and an expired vehicle tag. The employer assured the

plaintiff that it would accept responsibility for the consequences of any lack of registration. Despite

this, the truck driver refused to use the vehicle to deliver a load, so the employer discharged him.

The truck driver then sued for wrongful discharge. Id. at 656.

The DeSoto Court found that, under these facts, the truck driver could not make out a claim

for retaliatory discharge. It determined, inter alia, that “no fundamental public policy concern was

4

involved. . . .” Id. at 659. The DeSoto Court explained its reasoning:
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The act DeSoto thought was illegal, operating a trailer without registration papers,

does not implicate fundamental public policy concerns, such as health, safety, or

crime prevention, for which wrongful discharge actions have been recognized to date

in California. DeSoto was not asked to perform an act hazardous to his health or

safety. Instead, we view the failure to carry registration papers simply as one of the

“[m]any statutes [that] impose requirements whose fulfillment does not implicate

fundamental public policy concerns.”

Id. at 658-59 (citations omitted). As in DeSoto, in this case, operating a commercial vehicle with

a photocopied cab card does not implicate “important public policy” concerns for which retaliatory

discharge actions have heretofore been recognized in Tennessee. See Guy, 79 S.W.2d at 538.

Franklin was “not asked to perform an act hazardous to his health or safety.” DeSoto, 957 F.2d at

659. Much like the perceived infraction in DeSoto, Tenn. Comp. R. & Regs. 1340-5-2-.02, requiring

a commercial vehicle to carry the original cab card as opposed to a photocopy, can only be

characterized as one of the many regulations that impose “requirements whose fulfillment does not

implicate fundamental public policy concerns.” Id. (quoting Foley v. Interactive Data Corp., 765

P.2d 373, 379 (Cal. 1988)).

Therefore, we must conclude that under both the Tennessee Public Protection Act and the

common law, the regulatory infraction by Swift on which Franklin relies does not implicate

“fundamental public policy concerns” and Franklin’s refusal to drive the truck with a photocopy of

the cab card did not serve to further an important public policy interest embodied in the law. See

DeSoto, 957 F.2d at 659; Guy, 79 S.W.3d at 538. Consequently, his claim for retaliatory discharge

must fail, and the trial court’s judgment in favor of Franklin must be reversed.

This holding pretermits all other issues raised on appeal.

The decision of the trial court is reversed and the claim of Plaintiff/Appellee Anthony

Franklin is dismissed. Costs on appeal are assessed against Plaintiff/Appellee Anthony Franklin, for

which execution may issue, if necessary.

__________________________________________

HOLLY M. KIRBY, J.