IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 11, 2010 Session

GARY M. GOSSETT v. TRACTOR SUPPLY COMPANY, INC.

Appeal by Permission from the Court of Appeals, Middle Section

Chancery Court for Davidson County

No. 04-1484-IV Richard H. Dinkins, Chancellor

No. M2007-02530-SC-R11-CV - Filed September 20, 2010

The employee brought an action for common law retaliatory discharge against his employer

for refusal to participate in an allegedly illegal activity. The employer moved for summary

judgment, presenting evidence of a legitimate reason for the employee’s discharge pursuant

to the framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The employer also argued that summary judgment was warranted pursuant to Collins v.

AmSouth Bank, 241 S.W.3d 879 (Tenn. Ct. App. 2007), because the undisputed facts

showed that the employee did not report the alleged illegality. The trial court granted

summary judgment, which the Court of Appeals reversed. We hold that the McDonnell

Douglasframework isinapplicable at the summary judgmentstage because it isincompatible

with Tennessee summary judgment jurisprudence. We also hold that an employee alleging

retaliatory discharge for refusal to participate in an illegal activity need not report the

illegality. We therefore affirm the judgment of the Court of Appeals.

Tenn. R. App. P. 11 Appeal by Permission;

Judgment of the Court of Appeals Affirmed

JANICE M. HOLDER, C.J., delivered the opinion of the Court, in which GARY R. WADE, and

SHARON G. LEE, JJ., joined. CORNELIA A. CLARK, J., filed a separate opinion dissenting in

part and concurring in the judgment, in which WILLIAM C. KOCH, JR., J. joined.

Douglas Ray Pierce and James Andrew Farmer, Nashville, Tennessee, for the appellant,

Tractor Supply Company, Inc.

Wade Bonham Cowan, Nashville, Tennessee, for the appellee, Gary M. Gossett.
OPINION

I. Facts and Procedure

Defendant Tractor Supply Company, Inc., (Tractor Supply) employed Gary Gossett

as an “Inventory Control Manager” in its General Accounting Department until his discharge.

As Inventory Control Manager, Mr. Gossett prepared the inventory reserve analysis, which

calculates the amount of money Tractor Supply must reserve each fiscal quarter to account

for excess orslow-moving inventory. Each dollar reserved proportionately decreases Tractor

Supply’s earnings. After completing the inventory reserve analysis, Mr. Gossett delivered

it to his immediate supervisor, Vice President-Controller David Lewis, for use in Tractor

Supply’s quarterly earnings report to the Securities & Exchange Commission. The process

was overseen by Tractor Supply’s Chief Financial Officer, Calvin Massmann.

According to Mr. Gossett, during the first week of October 2003, Mr. Massmann

instructed him to remove products from the inventory reserve. Mr. Gossett contends that this

action would have artificially increased the quarterly earnings statement in violation of the

Securities Exchange Act of 1934 and related federal securities regulations. Mr. Gossett

specifically alleges that Mr. Massmann “wanted [Mr. Gossett] to look at all the various

categories that made up the Company’s inventory mix and find creative ways to remove

products that seemed to be creating the greatest need for additional reserves.” Mr. Gossett

states that he refused to participate in the allegedly illegal activity, which displeased Mr.

Massmann, and submitted an accurate inventory reserve analysis to Mr. Lewis. On

November 7, 2003, after consulting with Mr. Massmann and Tractor Supply’s human

resource manager, Mr. Lewis discharged Mr. Gossett.

Mr. Gossett brought an action for common law retaliatory discharge based on a

violation of public policy. He specifically alleged that Tractor Supply discharged him for

refusing to participate in Mr. Massmann’s allegedly illegal activity. Tractor Supply moved

for summary judgment, arguing that Mr. Gossett could not prove the essential causation

element of his claim at trial. The trial court found that the case presented genuine issues of

material fact, denied Tractor Supply’s motion, and set a date for trial.

Six weeks before trial, however, Tractor Supply filed a motion requesting that the trial

court reconsider and revise its order denying summary judgment in light of Collins v.

AmSouth Bank, 241 S.W.3d 879 (Tenn. Ct. App. 2007). In reconsidering its order, the trial

court observed that, pursuant to Collins, “reporting the alleged illegal activity is an essential

element of a cause of action for retaliatory discharge.” The trial court granted summary

judgment because it was undisputed that Mr. Gossett did not report Mr. Massmann’s

allegedly illegal activity to anyone.

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The Court of Appeals reversed the grant of summary judgment. We granted Tractor

Supply’s application for permission to appeal.

II. Analysis

The issue before us is whether Tractor Supply is entitled to summary judgment as to

Mr. Gossett’s retaliatory discharge claim. The granting or denying of summary judgment is

a question of law, which we review de novo. Blair v. W. Town Mall, 130 S.W.3d 761, 763

(Tenn. 2004).

A.

Tractor Supply argues that summary judgment is warranted when the motion for

summary judgment is analyzed pursuant to the framework announced in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Our analysis of this argument requires that we first

describe the McDonnell Douglas framework, this Court’s similar but distinct framework

adopted in Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993), and the

frameworks’ application in Tennessee.

In McDonnell Douglas, the United States Supreme Court set forth for use at trial the

“basic allocation of burdens and order of presentation of proof in a Title VII case alleging

discriminatory treatment.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252

(1981). Pursuant to McDonnell Douglas, if an employee proves a prima facie case of

discrimination or retaliation, the employee creates a rebuttable presumption that the employer

unlawfully discriminated or retaliated against him or her. Burdine, 450 U.S. at 254. The

burden of production shifts to the employer to articulate a legitimate and nondiscriminatory

or nonretaliatory reason for the action. Id. at 252-53. If the employer satisfies its burden, the

presumption of discrimination or retaliation “drops from the case,” id. at 255 n.10, which sets

the stage for the factfinder to decide whether the adverse employment action was

discriminatory or retaliatory. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

714-15 (1983). The employee, however, “must . . . have an opportunity to prove by a

preponderance of the evidence that the legitimate reasons offered by the [employer] were not

its true reasons, but were a pretext for discrimination.” Burdine, 450 U.S. at 253. Tennessee

courts have applied this evidentiary framework to statutory employment discrimination and

retaliation claims. See e.g., Allen v. McPhee, 240 S.W.3d 803, 819-23 (Tenn. 2007); Barnes

v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 708-09 (Tenn. 2000).

For common law retaliatory discharge cases such as the one before us, this Court has

adopted an analysis similar to but distinct from the McDonnell Douglas framework. At trial,

the employee has the burden of proving the four elements of the claim:

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(1) that an employment-at-will relationship existed;

(2) that the employee was discharged;

(3) that the reason for the discharge was that the employee 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 the

employee was the employee’s exercise of protected rights or compliance with

clear public policy.

Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 862 (Tenn. 2002) (citations omitted).

Proof of a causal link between the employee’s exercise of a protected right or compliance

with clear public policy and the employer’s decision to discharge the employee then

“imposes upon the employer the burden of showing a legitimate, non-pretextual reason for

the employee’s discharge.” Anderson, 857 S.W.2d at 559. No opinion of this Court

addressing common law retaliatory discharge, however, has described how an employee must

respond to the employer’s proffered reason. Nor have we been called on, until now, to

1

demonstrate how the employer’s burden of showing a legitimate reason for discharge applies

at the summary judgment stage.

2

We have addressed the common law retaliatory discharge cause of action in twelve opinions. Guy 1

v. Mut. of Omaha Ins. Co., 79 S.W.3d 528 (Tenn. 2002); Crews, 78 S.W.3d 852; Fahrner v. SW Mfg., Inc.,

48 S.W.3d 141 (Tenn. 2001); Stein v. Davidson Hotel Co., 945 S.W.2d 714 (Tenn. 1997); Coffey v. Fayette

Tubular Prods., 929 S.W.2d 326 (Tenn. 1996); Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d

646 (Tenn. 1995); Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822 (Tenn. 1994); Anderson, 857

S.W.2d 555; Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992); Harney v. Meadowbrook Nursing

Ctr., 784 S.W.2d 921 (Tenn. 1990); Chismv. Mid-South Milling Co., 762 S.W.2d 552 (Tenn. 1988); Clanton

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

Guy v. Mutual of Omaha Insurance Co., Anderson v. Standard Register Co., Harney v.

2

Meadowbrook Nursing Center, and Chism v. Mid-South Milling Co. addressed motions for summary

judgment, but all four opinions disposed of the motions without addressing how an employee must respond

after an employer articulates a legitimate reason for the discharge. Anderson v. Standard Register Co.

provides examples of legitimate, non-pretextual reasons, as the separate opinion correctly observes. 

However, the Court ultimately granted summary judgment in Anderson because the employee failed to show

a prima facie case of retaliatory discharge, 857 S.W.2d at 559, and the Court therefore did not apply any of

the provided examples of legitimate, non-pretexutal reasons.

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B.

This case presents us with an opportunity to consider the continued viability of the

McDonnell Douglas and the Anderson frameworks (collectively the McDonnell Douglas

framework) at the summary judgment stage. We therefore review the McDonnell Douglas

framework in the context of Tennessee summary judgment law, particularly in light of our

recent clarification of summary judgment in Hannan v. Alltel Publishing Co., 270 S.W.3d

1, 8-9 (Tenn. 2008).

Summary judgment operates to dispose of a case only when it presents no genuine

issue of material fact and when the moving party is entitled to judgment as a matter of law.

Tenn. R. Civ. P. 56.04. Rule 56 therefore precludes trial courts from deciding issues of

material fact in ruling on a motion for summary judgment. Mills v. CSX Transp., Inc., 300

S.W.3d 627, 631 (Tenn. 2009). To show that a case presents no genuine issue of material

fact, a party moving for summary judgment must produce evidence or refer to evidence in

the record “that affirmatively negates an essential element of the nonmoving party’s claim

or shows that the nonmoving party cannot prove an essential element of the claim at trial.”

Id. (citing Hannan, 270 S.W.3d at 8-9). “To affirmatively negate an essential element of the

nonmoving party’s claim, [the moving party] must point to evidence that tends to disprove

a material factual allegation made by the nonmoving party.” Id. (citing Martin v. Norfolk S.

Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008)). If the moving party fails to satisfy this burden

of production, summary judgment is not warranted. Id.

Evidence satisfying an employer’s burden of production pursuant to the McDonnell

Douglas framework does not necessarily demonstrate that there is no genuine issue of

material fact. The McDonnell Douglas framework requires only that an employer offer

evidence establishing a legitimate alternative to the reason for discharge alleged by the

employee. Burdine, 450 U.S. at 254. A legitimate reason for discharge, however, is not

always mutually exclusive of a discriminatory or retaliatory motive and thus does not

preclude the possibility that a discriminatory or retaliatory motive played a role in the

discharge decision. Cf. Anderson, 857 S.W.2d at 558 (adopting the “substantial factor” test

that an employee need only show a protected action “constituted an important or significant

motivating factor for the discharge,” not the exclusive or determinative factor, to establish

a prima facie retaliatory discharge claim). Indeed, Title VII of the Civil Rights Act

recognizes that an adverse employment action may be the result of both a legitimate reason

and a discriminatory motive. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 94-95 (2003).

Furthermore, evidence showing a legitimate reason for discharge can satisfy the requirements

of the McDonnell Douglas framework without tending to disprove any factual allegation by

the employee. An employer therefore may meet its burden of production pursuant to

McDonnell Douglas without satisfying the burden of production set forth in Tennessee Rule

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of Civil Procedure 56.04 for a party moving for summary judgment. See, e.g., Mills, 300

S.W.3d at 631; Martin, 271 S.W.3d at 83; Hannan, 270 S.W.3d at 5; Staples v. CBL &

Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); McCarley v. W. Quality Food Serv., 960

S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993).

The facts of this case illustrate why evidence of a legitimate reason for discharge does

not necessarily show that there is no genuine issue of material fact. In support of its motion

for summary judgment, Tractor Supply points to a deposition by Mr. Lewis in which he states

that he discharged Mr. Gossett to reduce Tractor Supply’s workforce. This reason satisfies

Tractor Supply’s burden of production pursuant to the McDonnell Douglas framework. See,

e.g., Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990). Mr. Lewis’s statements

show that reducing Tractor Supply’s work force was one reason for discharging Mr. Gossett.

Mr. Lewis’s statements do not show, however, that reducing its work force was the exclusive

reason for discharging Mr. Gossett. Mr. Lewis’s statements do not show an absence of a

retaliatory motive. Nor do Mr. Lewis’s statements tend to disprove any of Mr. Gossett’s

factual allegations. Even if we take Mr. Lewis’s statements as true, there remains a question

of fact as to whether the retaliatory motive alleged by Mr. Gossett amounted to a substantial

factor in Tractor Supply’s discharge decision. See Guy, 79 S.W.3d at 525. Tractor Supply

therefore has satisfied its burden of production pursuant to the McDonnell Douglas

framework without satisfying its burden of production for summary judgment. See Hannan,

270 S.W.3d at 8-9.

Furthermore, when applied at the summary judgment stage, the shifting burdens of

the McDonnell Douglas framework obfuscate the trial court’s summary judgment analysis.

The McDonnell Douglas framework “is intended to progressively sharpen the inquiry into

the elusive factual question of intentional discrimination” or retaliation. Burdine, 450 U.S.

at 254 n.8. Although such inquiry is particularly appropriate at trial, it is ill-suited for the

purpose of determining whether “there is no genuine issue as to any material fact.” Tenn.

R. Civ. P. 56.04. The burden-shifting analysis explained in Hannan, for example, “can be

an important tool in deciding whether summary judgment is appropriate,” Mills, 300 S.W.3d

at 634, because it specifically operates to show that there is no genuine issue of material fact

as to an essential element. See id. at 631. In contrast, the McDonnell Douglas framework

is a tool that trial courts use “to evaluate the evidence in light of common experience as it

bears on the critical question of discrimination” or retaliation. Aikens, 460 U.S. at 715

(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). Instead of

demonstrating the absence of any genuine issue of material fact, the framework focuses on

the “sensitive and difficult” factual question of whether an employer’s decision to discharge

an employee was discriminatory or retaliatory. Id. at 716.

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Because of this difference, the inquiries required by the McDonnell Douglas

framework may result in trial courts disposing of factual questions on summary judgment.

This unintended result is particularly obvious when a court is assessing whether the

employer’s proffered reason for an adverse employment action is pretextual. In addressing

the issue of pretext, a court may fail to consider the facts alleged by the employee to show

a prima facie case. As explained by Judge Tymkovich of the United States Court of Appeals

for the Tenth Circuit, “the compartmentalization of evidence causes courts to put on blinders,

looking at categories of evidence narrowly while the totality of the evidence may point to

discrimination.” Timothy M. Tymkovich, The Problem with Pretext, 85 Denv. U. L. Rev.

503, 519 (2008); see Wells v. Colo. Dept. of Transp., 325 F.3d 1205, 1225 (10th Cir. 2003)

(Hartz, J., concurring). When focusing solely on whether the employee showed a genuine

issue of material fact regarding the employer’s proffered reason, a court may overlook the

employee’s evidence establishing the prima facie case. This oversight causes a court to

contravene our instruction that evidence must be construed in a light most favorable to the

employee as the nonmoving party, see Martin, 271 S.W.3d at 84, and can result in an

improper grant of summary judgment.

In Allen v. McPhee, for example, this Court separated the evidence supporting the

employee’s prima facie case, close temporal proximity, from our consideration of whether

the employee presented evidence of pretext. See 240 S.W.3d at 823. The matter was before

us on the employee’s retaliation claim under the Tennessee Human Rights Act. Applying the

McDonnell Douglas framework, we first held that a reasonable jury could conclude that the

employee, Allen, established a prima facie case of retaliation. We then stated that her

employer “is entitled to summary judgment if it can articulate a legitimate, nondiscriminatory reason for transferring Allen and if Allen is unable to present evidence that

raises a genuine dispute over whether the proffered reason is pretextual.” Id. (citing Young

v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006)). The employer “contend[ed] that it

reassigned Allen . . . to protect her from further harassment” from her supervisor, whom

Allen had reported for sexual harassment. Id. In granting summary judgment, we held “that

Allen has failed to demonstrate the existence of a genuine issue of material fact regarding

[her employer’s] motivation for the reassignment.” Id.

Without the McDonnell Douglasframework, oursummary judgment analysisin Allen

would have reached a different outcome. Under well-established law, a court considering

a summary judgment motion “must take the strongest legitimate view of the evidence in

favor of the nonmoving party, allow all reasonable inferences in favor of that party, and

discard all countervailing evidence.” Blair, 130 S.W.3d at 768 (quoting Byrd, 847 S.W.2d

210-11). Summary judgment is warranted if the facts and inferencesfrom those facts “permit

a reasonable person to reach only one conclusion.” Staples, 15 S.W.3d at 89. When we

discard the countervailing evidence that Allen’s employer reassigned her to protect her from

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further harassment, the record in Allen v. McPhee showed that Allen was reassigned shortly

after reporting that her supervisor had sexually harassed her. From this fact and reasonable

inferences from this fact construed in favor of Allen, a reasonable person can reach more

than one conclusion as to whether the employer transferred Allen in retaliation. Summary

judgment therefore was inappropriate. However, the parties in Allen did not question the

applicability of the McDonnell Douglas framework at the summary judgment stage in

Tennessee, and we were not called on to consider its continued viability. Our reaffirmation

of longstanding Tennessee law on summary judgment, however, convinces us that our

application of the McDonnell Douglas framework in Allen skewed our summary judgment

analysis in favor of the employer.

As Allen demonstrates, applying the McDonnell Douglas framework at the summary

judgment stage can result in the grant of a summary judgment despite the presence of

genuine issues of material fact. Ironically, the McDonnell Douglas framework was not

designed to be an obstacle to trial for the employee. “The shifting burdens of proof set forth

in McDonnell Douglas are designed to assure that the ‘[employee] has his day in court

despite the unavailability of direct evidence.’” Trans World Airlines, Inc. v. Thurston, 469

U.S. 111, 121 (1985) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979)).

Furthermore, the McDonnell Douglas framework was designed to permit the trier of

fact to better evaluate the evidence as to whether the employer was motivated by a

discriminatory or retaliatory intent, see, e.g., Aikens, 460 U.S. 711, 715 (1983), not to

remove genuine issues of material fact from a trier of fact. Our decision therefore does not,

as the separate opinion argues, make obtaining summary judgment “needlessly more

difficult” in employment discrimination and retaliation cases. Rather, it makes summary

judgment available equally to all litigants.

Based on the foregoing reasons, we hold that the McDonnell Douglas framework is

inapplicable at the summary judgment stage because it is incompatible with Tennessee

summary judgment jurisprudence.

3

While opinions of federal intermediate appellate courts are only persuasive authority and not 3

binding on us, see Leggett v. Duke Energy Corp., 308 S.W.3d 843, 871 (Tenn. 2010), we observe that the

McDonnell Douglas framework has been the subject of much confusion and criticism in the federal circuit

courts of appeals. See e.g., Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1167 (10th Cir. 2007) (Hartz, J.,

concurring) (“I continue to believe that we should not apply the framework of McDonnell Douglas . . . to

review a summary judgment when the existence of a prima facie case is not disputed. . . . Applying that

framework is inconsistent with Supreme Court authority, adds unnecessary complexity to the analysis, and

is too likely to cause us to reach a result contrary to what we would decide if we focused on ‘the ultimate

question of discrimination vel non.’” (citations omitted)); Wright v. Murray Guard, Inc., 455 F.3d 702,

(continued...)

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C.

In light of the above analysis, we find the separate opinion’s additional arguments for

retaining the McDonnell Douglas framework at the summary judgment stage to be

unpersuasive. We expect that our holding today will engender less uncertainty than retaining

the McDonnell Douglas framework because our holding allows courts to conduct the same

summary judgment analysis in all cases. We also disagree that removing the McDonnell

Douglas framework from the summary judgment stage will “sharply reduce[] the quantum

of proof that a plaintiff needs to survive summary judgment,” as the separate opinion

contends. A plaintiff requires no proof to survive summary judgment unless the defendant

moving for summary judgment first shows there is no genuine issue as to any material fact

on an essential element, in which case all plaintiffs share the same burden of production to

show a genuine issue of material fact as to that element. Martin, 271 S.W.3d at 84; Hannan,

270 S.W.3d at 5. Removing the McDonnell Douglasframework from the summary judgment

stage instead requires defendantsseeking summary judgment in discrimination and retaliation

claims to produce evidence in accordance with Tennessee Rule of Civil Procedure 56 and

longstanding Tennessee law, like all other litigants. See e.g., Mills, 300 S.W.3d at 631.

We also are undeterred by the separate opinion’s caution that removing the

McDonnell Douglas framework at the summary judgment stage “may ultimately impact the

 (...continued) 3

716-21 (6th Cir. 2006) (Moore, J., concurring) (concluding that the McDonnell Douglas framework is “ill

suited to the analysis of mixed-motive claims” at summary judgment and stating that “[i]nquiries regarding

what actually motivated an employer’s decision are very fact intensive and thus will generally be difficult

to determine at the summary judgment stage”); Griffith v. City of Des Moines, 387 F.3d 733, 746-48 (8th

Cir. 2004) (Magnuson, J., sitting by designation, concurring specially) (stating that “the Supreme Court has

gradually chiseled McDonnell Douglas away from its original failing framework to an analysisthat still fails

to give effect to the language of the Civil Rights Act,” and opining that it should not be used to analyze Title

VII claims at trial or at summary judgment); Liu v. Amway Corp., 347 F.3d 1125, 1140 n.6 (9th Cir. 2003)

(Pregerson, J., dissenting in part) (“‘[T]he process dictated by the Civil Rights Act of 1991 [in § 2000e-2(m)]

is more useful than the analysis required by McDonnell Douglas.’” (quoting Dare v. Wal-Mart Stores, Inc.,

267 F. Supp. 2d 987, 991 (D. Minn. 2003))); Dunaway v. Int’l Bhd. of Teamsters, 310 F.3d 758, 762-63

(D.C. Cir. 2002) (stating that in a summary judgment motion on employee’s claim of employment

discrimination in which an employer has articulated a legitimate reason for the adverse employment action,

“the proper question now is whether the employer unlawfully discriminated against the plaintiff,” not

pretext); Tymkovich, supra, at 505, 529 (“[T]his focus on pretext hasshifted the emphasis of an employment

discrimination case away from the ultimate issue of whether the employer discriminated against the

complaining employee,” and “it may now be time to replace the framework with a simpler, more direct

method of determining the question of discrimination.”). For an example of the current state of the

McDonnell Douglas framework in federal courts, White v. Baxter Healthcare Corp. provides a survey of the

“widely differing approaches to the question of how to analyze summary judgment challenges in Title VII

mixed-motive cases” among the federal courts of appeals. 533 F.3d 381, 398-99 (6th Cir. 2008)

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viability of the framework at trial.” The separate opinion states that the reasoning behind our

decision may undercut “an employer’s motion for directed verdict at the conclusion of the

proof, based on uncontradicted evidence that the employee was discharged for a legitimate,

non-pretextual reason.” We disagree.

While motions for summary judgment and directed verdict are considered in the same

manner, Blair, 130 S.W.3d at 768, a court’s grant of summary judgment must be more

deliberate because it occurs before the nonmoving party has had the opportunity to present

all evidence at trial. Mills, 300 S.W.3d at 632 n.3 (citing Hamrick v. Spring City Motor Co.,

708 S.W.2d 383, 389 (Tenn. 1986)). In contrast, when an employer moves for directed

verdict, the employee has had the opportunity to present his or her case in full. See Tenn. R.

Civ. P. 50.01. “Uncontradicted evidence that the employee was discharged for a legitimate,

non-pretextual reason” at the directed verdict stage shows that the employee did not present

any proof at trial of a retaliatory reason for the discharge. The employer therefore would be

entitled to directed verdict because the strongest legitimate view of these facts in favor of the

employee, with all evidence construed in the employee’s favor and all countervailing

evidence discarded, permits a reasonable person to reach only one conclusion on the essential

causation element. See Johnson v. Tenn. Farmers Mut. Ins. Co., 205 S.W.3d 365, 370 (Tenn.

2006).

Additionally, the separate opinion’s concern reflects confusion about our holding. As

the United States Supreme Court explained in Aikens, evidence of a legitimate reason for the

discharge, combined with the employee’s evidence of a prima facie case, generally presents

a question of fact for the factfinder. 460 U.S. at 715 (quoting Burdine, 450 U.S. at 253).

Therefore, an employer that hassatisfied its burden of production for the McDonnell Douglas

framework likely has not satisfied its burden of production for summary judgment.

However, our holding does not exclude the possibility of summary judgment when an

employer presents undisputed evidence that a legitimate reason was the exclusive motivation

for discharging the employee. In such a case, the employer has demonstrated that the

employee cannot show that a discriminatory or retaliatory reason was a substantial factor in

the discharge decision and therefore has met its burden of production forsummary judgment.

Because no genuine issue of material fact exists on an essential element, either summary

judgment or directed verdict may be granted.

D.

We further observe that summary judgment must be denied in this case because Mr.

Gossett has clearly identified genuine issues of material fact. In Mills v. CSX

Transportation, Inc., we stated that when a nonmoving party has clearly identified a genuine

issue of material fact on the element that the moving party is attempting to negate, a court

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need not decide whether the party moving for summary judgment has satisfied its burden of

production pursuant to Tennessee Rule of Civil Procedure 56. 300 S.W.3d at 634. Without

regard to whether a moving party has met its burden of production, summary judgment is not

warranted when there is a genuine issue of any material fact as to the contested element.

Tenn. R. Civ. P. 56.04.

Tractor Supply, in its summary judgment motion, pointed to evidence contesting Mr.

Gossett’s ability to establish at trial that a retaliatory motive was a substantial factor in

Tractor Supply’s decision to discharge him. Mr. Gossett in turn proffered evidence showing

genuine issues of material fact about whether Tractor Supply’s motive for discharging Mr.

Gossett was in fact retaliatory. Specifically,

• Mr. Gossett points to the deposition testimony of Accounts Payable Manager John

Trotter, who assumed the Inventory Control Manager responsibilities in addition to

his own responsibilities. Mr. Trotter described the two job responsibilities as

“dramatically different,” raising a genuine issue of material fact as to whether

redundancy between the two positions actually motivated Mr. Gossett’s discharge as

Mr. Lewis maintained.

• Mr. Gossett points to John Trotter’s statement that Mr. Lewis said shortly after

discharging Mr. Gossett that he was discharged for “unacceptable performance,” not

because of a redundancy in management, raising a genuine issue of material fact

about Tractor Supply’s motivation behind Mr. Gossett’s discharge.

• Mr. Gossett points to a newspaper advertisement published the Sunday before he was

discharged in which Tractor Supply sought a financial analyst for Mr. Gossett’s

department, raising a genuine issue of material fact as to whether Tractor Supply

actually intended to reduce its workforce by discharging Mr. Gossett.

• Mr. Gossett points to facts showing that his predecessor was demoted instead of

discharged when Tractor Supply decided to remove him from the Inventory Control

Manager position, raising a genuine issue of material fact as to why Tractor Supply

discharged rather than demoted Mr. Gossett.

These genuine issues of material fact about Tractor Supply’s proffered motivation preclude

summary judgment. Id. at 634-35; cf. White, 533 F.3d at 393 n.6 (“The question of whether

the employer’s judgment was reasonable or was instead motivated by improper

considerations is for the jury to consider.”).

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E.

Tractor Supply next argues that summary judgment is warranted pursuant to Collins

because Mr. Gossett did not report to an authority within or outside Tractor Supply that Mr.

Massmann had asked him to perform an illegal activity. It is undisputed that Mr. Gossett did

not report the activity, and we therefore address only whether reporting is an essential

element of Mr. Gossett’s claim.

The elements of a common law retaliatory discharge action can apply to many distinct

factual scenarios. See Chism, 762 S.W.2d at 556. We have stated that it can arise when an

employee is discharged either for refusing to remain silent about an illegal activity or for

refusing to participate in an illegal activity. Anderson, 857 S.W.2d at 556; see Chism, 762

S.W.2d at 556. When an employee is discharged for refusing to remain silent about an

illegal activity, the employee must show that his or her reporting of the illegal activity

furthered a clear public policy. See Guy, 79 S.W.3d at 537 & n.4. Without this showing, the

claimant cannot establish the third element of the common law retaliatory discharge action,

which requires proof of the clear public policy that the employer violated by the discharge.

See Crews, 78 S.W.3d at 862.

We have never held that an employee alleging retaliatory discharge for refusing to

participate in an illegal activity must report the illegality to show that the employer violated

a clear public policy. Cf. Reynolds, 887 S.W.2d 822 (upholding a verdict in favor of truckers

claiming retaliatory discharge for refusing to drive uninspected trucks in violation of federal

and state laws without considering whether the truckers reported their employer’s illegal

activity). Tractor Supply asserts that pursuant to Collins, 241 S.W.3d at 885, reporting the

allegedly illegal activity is essential to showing the third element in a case for common law

retaliatory discharge based on refusing to participate in an illegal activity.

In Collins, the employee “alleged that she was fired solely because she refused to go

along with [her supervisor’s] illegal instructions.” Id. at 882. The Court of Appeals affirmed

the summary judgment on the employee’s statutory and common law retaliatory discharge

claims and held that “[p]ersons asserting either a statutory or common law whistleblowing

claim must prove” that “their employer violated a law or regulation” and that their efforts to

report “an illegal or unsafe practice furthered an important public policy interest.” Id. at 885

(citing Guy, 79 S.W.3d at 538 n.4). It found summary judgment proper because the

employee failed to demonstrate that her supervisor’s request was illegal and because she

“failed to present any proof thatshe reported or attempted to report [her supervisor’s] request

to other bank officials or regulators.” Id. at 885-86.

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Although we agree with the statement in Collins concerning the requirements of

whistleblowing claims, Collins involved a plaintiff who refused to participate in an allegedly

illegal activity, not a plaintiff who refused to remain silent about it. In a “whistleblowing”

case, in which a failure to remain silent is alleged, the nature of the claim asserts that silence

was broken. The employee has no cause of action unless the employee shows that the

reporting furthered some clear public interest. A case alleging a refusal to participate does

not require that silence be broken for a claim to exist, and reporting therefore is not integral

to the claim. For the purposes of the common law retaliatory discharge cause of action, we

decline to hold that an employee’s refusal to violate the law never furthers a clear public

policy unlessthe employee reportsthe employer’s attempted violation. The Court of Appeals

therefore incorrectly applied the reporting element to the employee’s action for common law

retaliatory discharge for refusing to participate in an illegal activity.

Our decision not to add a reporting requirement will not expand the use of the

common law retaliatory discharge cause of action or cause the retaliatory discharge exception

to swallow the employment-at-will doctrine that Tennessee courts have long recognized.

Chism, 762 S.W.2d at 555-56. Claimants alleging common law retaliatory discharge must

identify “‘an unambiguous constitutional, statutory or regulatory provision’” as evidence of

the public policy that the employee’s discharge violates. Guy, 79 S.W.3d at 535 (quoting

Chism, 762 S.W.2d at 556); Crews, 78 S.W.3d at 862. This element sufficiently limits the

retaliatory discharge cause of action to only those cases in which a discharge violates public

policy. Chism, 762 S.W.2d at 557. Collins, for example, properly affirmed summary

judgment because the employee alleging retaliatory discharge failed to identify an

unambiguous constitutional, statutory, or regulatory provision evincing a clear public policy

that the employee furthered by refusing to follow her supervisor’s instruction. 241 S.W.3d

at 885-86 & n.4.

III. Conclusion

For the foregoing reasons, we affirm the judgment of the Court of Appeals reversing

the trial court’s grant of summary judgment to Tractor Supply. Costs are assessed against

the appellant, Tractor Supply Company, Inc., for which execution may issue if necessary.

JANICE M. HOLDER, CHIEF JUSTICE

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