FILED

April 7, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

April 7, 1997

FOR PUBLICATION

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

MAXINE O. MASON, (

(

Plaintiff-Appellee, (

(

( Sevier County

(

v . ( Hon. Ben W. Hooper, II,

( Judge

(

( No. 03S01-9606-CV-00061

KENNETH M. SEATON AND WIFE, (

LAUREL SEATON d/b/a GRAND (

HOTEL, (

(

Defendants-Appellants. (

For Plaintiff-Appellee : For Defendants-Appellants :

James H. Ripley Douglas L. Dutton

 Sharp & Ripley Amy V. Hollars

Sevierville Hodges, Doughty & Carson

Knoxville 

O P I N I O N

JUDGMENT OF COURT OF APPEALS

AFFIRMED; CASE REMANDED TO

TRIAL COURT. REID, J.
1

Tenn . Code Ann. § 50-1-304 states:

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

refusing to participate in, or for refusing to remain silent

about, illegal activities.

(b) As used in this section, “illegal activities” means

activities which 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.

(c) 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. . . .

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This case presents for review the decision of the

Court of Appeals, reversing the trial court, that the action

of retaliatory discharge "for refusing to remain silent about

illegal activities" does not require a showing that the

employer expressly or implicitly directed the employee to

remain silent about the illegal activity. This Court affirms

the decision and rationale of the Court of Appeals.

I

The case is before the Court on the defendants'

motion for summary judgment asserting that the complaint does

not state a cause of action for retaliatory discharge for

violation of the provisions of Tenn. Code Ann. § 50-1-304

(1991). 1 

The evidence submitted in opposition to the motion

shows that the plaintiff, Maxine O. Mason, worked in the
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laundry room of a hotel owned and operated by the defendants,

Kenneth M. and Laurel Seaton. The laundry room had three

doors, two of which were located on the east side of the

laundry room and provided access to the area of the hotel

designated the convention center. The other door was located

on the west side of the laundry room and opened to the

outside. Gas fired dryers were located along the wall

between the east doors and the west door. These dryers had

accidentally caught on fire on previous occasions. The

plaintiff had noticed in the laundry room unprotected

electrical wiring and uncovered electrical junction boxes,

which after her discharge, were found to be in violation of

the fire code. 

Sometime prior to being discharged from her

employment, the plaintiff saw maintenance personnel

installing locks on the two doors providing access to the

convention center. The plaintiff was told that these two

doors would remain locked, and the only means of entering or

leaving the laundry room would be the door at the opposite

end of the room. The plaintiff expressed to management

personnel her concern that she and other laundry room

personnel could be trapped in the laundry room in the event a

fire started at one of the gas fired dryers. When pleas by

the plaintiff and others failed to dissuade management from
2

In every building or structure exits shall be so

arranged and maintained as to provide free and

unobstructed egress from all parts of the

building or structure at all times when it is

occupied. No lock or fastening to prevent free

escape from the inside of any building shall be

installed except in mental, penal, or corrective

institutions where supervisory personnel is

continually on duty and effective provisions are

made to remove occupants in case of fire or other

emergency.

29 C.F.R. § 1910.36(b)(4) (1996).

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its decision to lock the doors at the east end of the laundry

room, the plaintiff telephoned the city fire and police

department. As the result of the plaintiff's call, police

and fire department officers made an investigation at the

hotel. At the insistence of the officers, the hotel manager

discussed with the plaintiff her safety concerns. As the

result, the defendants agreed that one door on the east end

of the laundry room would remain unlocked until 7 p.m. of

each day. 

Subsequently, the defendants were cited for code

violations unrelated to the locked doors, for which they paid

a penalty. An industrial safety expert testified that

locking both doors at the east end of the laundry room would

have created a condition dangerous to workers in that room

and was a violation of 29 C.F.R. § 1910.36(b)(4) (1996). 2 

The plaintiff's employment was terminated six days

after the date on which she protested the defendants'
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decision to lock the doors and reported her concerns to city

officials. Prior to that event, management had expressed no

dissatisfaction with the plaintiff's work. No reason was

given for her discharge. At no time did the defendants

instruct the plaintiff to remain silent regarding the

conditions in the laundry room. 

I I

The trial court found that whether the plaintiff

was discharged from her employment solely for reporting

conditions in the laundry room was a disputed issue of

material fact. The trial court further found that whether

the activity reported by the plaintiff was illegal also was a

disputed issue of material fact. However, the court found

the plaintiff had failed to submit evidence that she was

forced by her employer to violate a law or regulation or to

remain silent about the violation, and on that basis,

dismissed the complaint.

The Court of Appeals found the record presented a

disputed issue of material fact as to every essential element

of the cause of action alleged and remanded the case for

trial.
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III

Review in this Court is limited to the question of

whether the plaintiff failed to present evidence supporting

every essential element of a cause of action under Section

50-1-304. Rule 56.03 of the Tennessee Rules of Civil

Procedure provides that summary judgment "shall be rendered

forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as a matter of law."

[W]hen the facts material to the

application of a rule of law are

undisputed, the application is a matter

of law for the court since there is

nothing to submit to the jury to resolve

in favor of one party or the other. In

other words, when there is no dispute

over the evidence establishing the facts

that control the application of a rule of

law, summary judgment is an appropriate

means of deciding that issue.

Byrd v. Hall , 847 S.W.2d 208, 214-15 (Tenn. 1993).

"Construction of [a] statute and application of the law to

the facts [are questions] of law." Beare Co. v. Tennessee

Dept. of Revenue , 858 S.W.2d 906, 907 (Tenn. 1993). It

follows that the issues raised by the motion for summary
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judgment of whether the plaintiff failed to present evidence

supporting the essential elements of the cause of action, are

questions of law. Consequently, the scope of review is de

novo with no presumption of correctness. See Tenn. R. App.

P. 13(d); Union Carbide Corp. v. Huddleston , 854 S.W.2d 87,

91 (Tenn. 1993). "No presumption of correctness attaches to

decisions granting [or denying] summary judgments because

they involve only questions of law. Thus, on appeal, we must

make a fresh determination concerning whether or not the

requirements of Tenn. R. Civ. P. 56 have been met." Cowden

v. Sovran Bank/Central South , 816 S.W.2d 741, 744 

(Tenn. 1991).

I V

The defendants' position is that the activities

reported by the plaintiff were not illegal within the meaning

of the statute, the plaintiff failed to show a causal

relationship between her call to the fire and police

department and her discharge, and the plaintiff was not

instructed to remain silent within the meaning of the

statute. 

The record clearly supports the concurrent findings

by the trial court and the Court of Appeals on the first two
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issues. 

The testimony of the expert on industrial safety

that locking the doors created a dangerous working condition,

and the existence of code violations were sufficient evidence

of illegal activity to overcome the motion for summary

judgment. This evidence is sufficient to show "illegal

activity," which is defined as "activities which 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." Tenn. Code Ann. § 50-1-

304(b). The statute's protection extends to employees who

have reasonable cause to believe a law, regulation, or rule

has been violated or will be violated, and in good faith

report it. See e.g. , Melchi v. Burns Int'l Security

Services, Inc. , 597 F. Supp. 575, 583 (E.D. Mich. 1984).

The evidence also would support a verdict that the

plaintiff's employment was terminated solely because she

reported the conditions in the laundry room, including the

installation of locks, to city officials. In Anderson v.

Standard Register Co ., 857 S.W.2d 555 (Tenn. 1993), and

Conatser v. Clarksville Coca-Cola , 920 S.W.2d 646 (Tenn.

1995), the Court discussed the element of causal relationship

between protected conduct and discharge from employment. In
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Anderson , the employee was discharged pursuant to a facially

neutral absence control policy for absences caused by a workrelated injury. She alleged that she was discharged because

she asserted a workers’ compensation claim for the injury. 

The employer stated that she was discharged because she was

“medically unable to perform her job duties.” Anderson v.

Standard Register Co. , 857 S.W.2d at 556. In that case, the

Court stated that one element of the cause of action for

retaliatory discharge for asserting benefits under the

workers’ compensation law was that “the claim for workers’

compensation benefits was a substantial factor in the

employer’s motivation to terminate the employee’s

employment.” Id. at 558.

The burden of proof rests, of course,

upon the plaintiff to prove the elements

of the cause of action, including a

causal relationship between the claim for

workers’ compensation benefits and the

termination of employment. Proof of

discharge without evidence of a causal

relationship between the claim for

benefits and the discharge does not

present an issue for the jury. However,

proof of a causal link between the claim

for benefits and the employee’s discharge

imposes upon the employer the burden of

showing a legitimate, non-pretextual

reason for the employee’s discharge.

Id. at 558-59. Finding that the employee had failed to show

that the claim for benefits was a factor in the discharge,
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the Court affirmed the trial court’s grant of summary

judgment to the employer. In Conatser , the employee had

worked for four months before sustaining an on the job

injury, and was terminated three days after returning to

work. The employer denied that the claim for workers’

compensation benefits was a substantial factor in its

decision to discharge the employee, claiming that the

employee was discharged because he was not physically strong

enough to perform the job. The employee argued that his

discharge only three days after returning to work constituted

a prima facie showing that the termination of his employment

was in retaliation for the assertion of a workers’

compensation claim. The Court stated,

That evidence is not

sufficient. Even in

the quote from

Larson’s treatise on

Workers’ Compensation

Law relied upon by

the employee,

proximity in time

without evidence of

satisfactory job

performance does not

make a prima facie

case. 2A Arthur

Larson, The Law of

Workmen’s

Compensation ,

§68.36(c), p. 13-318

(1994).

Conatser v. Clarksville Coca-Cola , 920 S.W.2d at 648.
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As stated in Conatser , proximity in time between

the protected act and the discharge is not sufficient to

establish a causal relationship. However, as stated in

Anderson , evidence of a causal link between the protected act

and the employee's discharge imposes upon the employer the

burden of showing the reason for the discharge. For the

context in which the evidence of causation must be viewed,

guidance is provided in Byrd v. Hall , where the Court stated,

“In making this determination [of whether a genuine issue

exists], the court is to view the evidence in a light

favorable to the nonmoving party and allow all reasonable

inferences in his favor.” Byrd v. Hall , 847 S.W.2d. at 215.

Appropriate application of the Rule is

more likely to be achieved if litigants

and courts alike keep in mind that the

purpose of a summary judgment proceeding

is not the finding of facts, the

resolution of disputed, material facts,

or the determination of conflicting

inferences reasonably to be drawn from

those facts. “The purpose is to resolve

controlling issues of law, and that

alone.” Bellamy v. Federal Exp. Corp. ,

749 S.W.2d 31,33 (Tenn. 1988). 

Byrd v. Hall , 847 S.W.2d at 216. Since the trial court is

not to resolve issues of fact in deciding a motion for

summary judgment, the determination of whether the

circumstances give rise to an inference of retaliatory

discharge "must be a determination of whether the proffered
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admissible evidence shows circumstances that would be

sufficient to permit a rational finder of fact to infer a

[retaliatory] motive. It is not the province of the summary

judgment court itself to decide what inferences should be

drawn.” Chambers v. TRM Copy Ctrs. Corp. , 43 F.3d 29, 38

(2nd Cir. 1994).

Here, the essential factor to be determined is the

employer's motivation. Evidence of that motivation is

largely within the possession of the defendants. 

Consequently, where, as in this case, the plaintiff's claim

of causation is consistent with the facts and circumstances

shown, and the employer chooses to offer no explanation for

the employee's discharge, fairness requires that any credible

evidence from which the trier of fact could infer causation

will defeat the motion for summary judgment. The plaintiff

in this case is not guilty of the "generalizations and

conclusions" found to be fatal in Chism v. Mid-South Milling

Co. , see p. [slip op. at 15], infra . She affirmatively

states that she had never received any reprimand or adverse

evaluation, and that she was a good and loyal employee. This

evidence is uncontested. Under the circumstances of this

case, the plaintiff's affidavit is not merely conclusory and

must be given some effect. The evidence of a good work

history presented by the plaintiff, in the context of the
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facts and circumstances of this case, is sufficient to

establish a causal relationship between her reporting of the

suspected illegal activity at her place of employment and her

discharge. 

In summary, the record shows, for the purposes of

this appeal, that the plaintiff, without having been directed

by her employer to remain silent about illegal activity, was

discharged solely because she reported that activity. The

final issue, then, is whether there can be a violation of the

statute in the absence of a prior directive by the employer. 

An affirmative response to this question is required by the

purpose for which the statute was enacted as well as the

language of the statute itself.

Prior decisions by this Court reflect the

resolution by the legislature and the Court of the competing

interests of employers and employees. "The cause of action

for retaliatory discharge defines the balance point between

the employment-at-will doctrine and rights granted employees

under well-defined public policy.” Anderson v. Standard

Register Co. , 857 S.W.2d at 556; Reynolds v. Ozark Motor

Lines, Inc. , 887 S.W.2d 822, 824 (Tenn. 1994). Employmentat-will is the fundamental principle controlling the

relationship between employers and employees. That principle
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was stated in Harney v. Meadowbrook Nursing Center , 784

S.W.2d 921, 922 (Tenn. 1990), as follows: "The long standing

rule in this State is that an employee-at-will may be

discharged without breach of contract for good cause, bad

cause or no cause at all, without being thereby guilty of

legal wrong." This doctrine recognizes that employers need

the freedom to make their own business judgments without

interference from the courts. "[A]n employer's ability to

make and act upon independent assessments of an employee's

abilities and job performance as well as business needs is

essential to the free-enterprise system." Clifford v. Cactus

Drilling Corp. , 353 N.W.2d 469, 474 (Mich. 1984). However,

even under the common law, an employee is protected from

discharge in retaliation for attempting to exercise a

statutory or constitutional right, or in violation of a welldefined public policy. See e.g. , Conatser v. Clarksville

Coca-Cola , 920 S.W.2d 646 (Tenn. 1995); Reynolds v. Ozark

Motor Lines, Inc. , 887 S.W.2d 822 (Tenn. 1994); Anderson v.

Standard Register Co. , 857 S.W.2d 555 (Tenn. 1993); Hodges v.

S.C. Toof & Co. , 833 S.W.2d 896 (Tenn. 1992); Chism v. MidSouth Milling Co. , 762 S.W.2d 552 (Tenn. 1988); Clanton v.

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

In Chism v. Mid-South Milling Co. , 762 S.W.2d 552

(Tenn. 1988), the Court rejected a complaint asserting that
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the plaintiff was terminated “solely for refusing to

participate in, continue to participate in, or to remain

silent about illegal activities.” I d . at 553. However, the

Court stated,

We do not intend to disparage such an

action. The Court is generally prepared

to uphold such claims in appropriate

cases, such as the Clanton case. Mere

generalizations and conclusions, however,

will not suffice when a pleading is

challenged by a Rule 12 or Rule 56

motion. Certainly it would have been a

simple matter to amend the complaint or

to file a specific affidavit if the

plaintiff were in fact discharged because

he refused to participate in illegal

activities, to continue to participate

therein or to remain silent about them as

stated in his appellate brief.

Id. at 557.

In Hodges v. S.C. Toof & Co. , 833 S.W.2d 896 (Tenn.

1992), the employee was discharged because of his jury

service. At trial, he was awarded compensatory and punitive

damages. The issue was whether damages were limited to

reinstatement and lost wages pursuant to Tenn. Code Ann. §

22-4-108, which states, “No employer shall discharge or in

any manner discriminate against an employee for serving on

jury duty ....” In holding that the statutory remedy was not

exclusive, the Court reviewed the common law of retaliatory
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discharge, stating, "the tort action of retaliatory

discharge [is] available to employees discharged as a

consequence of an employer’s violation of a clearly expressed

statutory policy." I d . at 899.

The case of Reynolds v. Ozark Motor Lines, Inc. ,

887 S.W.2d 822 (Tenn. 1994), arose prior to enactment of the

statute at issue in this case. There the claim for

retaliatory discharge was based upon a discharge caused by an

employee’s refusal to violate the safety provisions of the

Tennessee Motor Carriers Act, Tenn. Code Ann. § 65-15-101

(1993). The plaintiffs were discharged because they refused

to violate regulations adopted pursuant to the Act which

require that the driver of a motor vehicle inspect the

vehicle and be satisfied that the vehicle is in safe

operating condition before it is operated on a public road. 

The Court held that, 

 The duties imposed by the Act upon

owners and operators relate directly and

substantially to the safety of all

persons using the streets and highways.

...

 These statutes and regulations

clearly indicate that the legislature, in

enacting the Tennessee Motor Carriers

Act, has declared that the public policy

of Tennessee includes the protection,

safety, and welfare of the traveling

public, including those persons who

operate motor vehicles regulated by the
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Act. Retaliatory discharge of employees

for refusing to violate those provisions

designed to protect the public would

seriously impair the legislative plan for

ensuring highway safety.

I d . at 824-25. The Court in Reynolds v. Ozark Motor Lines ,

found that, under the common law,

the action [of retaliatory discharge]

will lie where the employer has violated

a clear public policy evidenced by an

unambiguous constitutional, statutory, or

regulatory provision and the employer’s

violation was a substantial factor in the

employee’s discharge.

Id. at 823.

By enacting Tenn. Code Ann. § 50-1-304, the Public

Protection Act of 1990, also commonly known as the "whistleblower" statute, the legislature extended the common law to

protect employees not only from discharge for failing to

violate a statute, regulation or rule, but also from

discharge for refusing to remain silent about the existence

of such violations at their place of employment. The

enactment is a statutory recognition that the protection of

employees who report violations of laws, regulations, and

rules is a part of Tennessee public policy. See e.g. , id. at

824. Based on the facts before the Court, a jury could find
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that the plaintiff's discharge was a violation of that public

policy. 

The allegations of the plaintiff's d ischarge also woul d

constitute a viola tion of the plain language of the st atute. 

Under the statute, an employer cannot discharge employees for

refusing "to participate in, or for refusing to remain silent

about, illegal activities" at the work place. Tenn. Code

Ann. § 50-1-304(a). The action or conduct for which the

statute provides vindication is not, as the defendants

insist, disobeying the employer's instructions, but rather is

terminating the plaintiff's employment for exercising a right

granted by law. It is axiomatic that an employer who is

engaged in illegal activity does not want that activity

reported to those officials who are responsible for enforcing

the law. Illegal activity in a work environment cannot exist

without at least the forbearance of the workers. Requiring

an explicit instruction by the employer as an essential

component of the cause of action would defeat the purpose of

the statute. Under the defendants' interpretation of the

statute, an employer would never be liable for discharging an

employee for reporting illegal activity so long as the

employer had not expressly forbade the employee from

reporting the activity. As stated by the Court of Appeals,

"[s]tatutes are not to be construed so strictly as to defeat
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the obvious intention of the legislature." State v. Netto ,

486 S.W.2d 725, 728 (Tenn. 1972). 

The literal language of the statute does not submit

to the narrow interpretation advanced by the defendants. 

They focus on the word "refusal" and insist there can be no

refusal without an instruction. In the statute, the thing

refused is "to remain silent about illegal activity." 

Remaining silent is the opposite of speaking out, and

refusing to remain silent is the same as speaking out. The

clear meaning of the statute is that employees have the

absolute right to speak out about illegal activities in their

workplaces. The declaration by word or deed that one refuses

to remain silent about a situation does not imply that there

has been an order to remain silent. This statute does not

require a showing that the employer instructed the employee

to refrain from reporting the illegal activity; consequently,

lack of such evidence is not fatal to the cause of action.

V

The judgment of the Court of Appeals is affirmed,

and the case is remanded to the trial court for further

proceedings.
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The costs are taxed to the appellees, Kenneth M.

Seaton and Laurel Seaton.

 __________________________

 Reid, J.

Concur:

Birch, C.J., Drowota and Anderson, JJ.