# FILED
October 3, 199 7 Cecil W. Crowson Ap pellate Cou rt Clerk DIA NA MORRIS, ) Tennessee Claim s ) No. 012174 Claimant/A ppellee ) ) v. ) Appeal No. ) 01A01- 9612-BC-00569 STA TE OF TENN ESSEE, ) ) Defendant/Appellant )

IN THE COU RT OF A PPEA LS OF TENN ESSEE MIDDLE SECTION AT N ASHVILLE

APPE AL FROM TH E TENNESSEE C LA IMS COMM ISSION AT NA SHVILLE, TE NNESSEE
HONORA BLE W. R. B AK ER, COMMI SSIONER

John Knox Walkup Attorney Gen eral and Repor ter Michael E. Moore Solicitor General Michael W. Catalano Associate Sol icitor Gener al Office of the Attorney

General Executive Offices 500 Charlotte A

venue Nashvil le, TN 37243-0497 ATTORNEYS FOR DEFENDANT/APPELL ANT Bill Hodde 305 Rivergate Park Bui lding 1994 Gallatin R oad, North Madison, TN 37115- 2023 ATTORNEY FOR

CLAIMANT/APPELL EE

VAC AT ED and DISM ISSED

WILLIAM H. INMAN, SENIO R JUDGE CONCUR: HENRY F . TODD, PRESID ING JUDGE, MIDDLE SEC TION WILLIAM C. KOCH, JR., J UDGE1 Th e tota l awa rd w as fo r 484 wee ks . So fa r as th e rec ord r eflec ts, the re w ere n o po stjudgment proceed ings qu esti oning thi s award and we wi ll not f urth er not ice i t. Neit her do we addr ess the a nom aly inhere nt in the com bina tion of thes e jud gm ents

.

2 T ENN . C ODE A NN . § 9-8-307(a)(1)(k ). 2 DIA NA MORRIS, ) Tennessee Claim s ) No. 012174 Claimant/A ppellee ) ) v. ) Appeal No. ) 01A01- 9612-BC-00569 STA TE OF TENN ESSEE, ) ) Defendant/Appellant )

O P I N I O N

This ac tion was file d Octob er 15, 1992 be fore theTenness ee Cla ims Commission. The plaintif f sought two-fold relief: (1) bene fits under the W orkers’ Compensation Law , T ENN . C ODE A NN . § 50-6-101 et seq., and (2) damage s for the tort of alleg ed retaliator y discharge for filing a claim for workers’ compensation ben efi ts, a s alle gedly a utho rized by T ENN . C ODE A NN . § 9-8-301 et seq. The cl aims were bifurcated. The claim for workers’ compensation benefits w as heard October

22, 1993. The Commissioner f ound that the plaintif f sustained a work related injury on August 24, 1990 during the course of her employment as a n account cler k with t he Department of Correction s, and that she was 90 percent perma nently partially disabled as a r

esult of this ac cident and entit led to benefits accordingly , plus 124 weeks for t emp orar y tota l disa bilit y. 1 With respect to that portion of the complaint seek ing to recover damages for the asserted tort of retaliat ory discharge, the defendant f iled a motion to dismiss pursuant to R ULE 12.02(1), T ENN . R. C IV . P., for lack of subj ect matter jur isdiction. The Commissioner overrule d the motion on Januar y 30, 1995, hol ding that the jurisdict ional statute of theClaims Commi ssion 2 was sufficien tly broad to3 “N o . . . r eg ula tion or o the r de vic e s ha ll . . . op er ate to r elie ve an y em plo yer of a ny obliga tion . . . “ 3 “accommodate a claim for damages for the to rt of retaliatory discharge.” The claim then lay fall ow for 19 months when the Commi ssion entered a n Order, on Sept ember 9, 1996, that “the claimant has factual ly and leg ally est ablished that s he was discharged because she filed a workers ’ compensation c laim,” but reserved the issue of damages for a later

determination. A judgment for damag es in the amount of $300,000.00 was entered on November 9, 1996. The State appeals the award of damages for a retaliat ory disc harge and presents for review the issues of (1) whether the Claims Comm issioner erred in holding that he had subject m atter jurisdiction over the cause of action for retaliatory discharge for filing a w

orkers’ compensation clai m against the S tate, and (2) w hether the Commissioner

erred in hol ding that the claimant is e ntitled to damag es in the amount of $300,000.00 for retal iatory di scharge w hen the only r elief avail able for retaliatory

discharg e is equit able relief. I n light of our disposition of the case, w e do not reach the second issue. The Tennessee Claims Commission is an administrat ive tri bunal. T ENN . C ODE A NN . § 9-8- 301(a) . It ha s exc lusiv e juri sdict ion to determ ine al l monet ary claim s against the State falling within certain enum erated categories, one of which, (k), is alleged to confer jurisdi ction in the C ommission to enter tain the subjec

t action. T ENN . C ODE A NN . § 9-8-307(a)(1)(k) provides: (K) Worker’s compensation c laimsby State employees, including injuries incurred by national guard members, state defense force members, civil airpatrol members, civil defense agency pe rsonnel and emergency forest fire figh ters while o n act ive du ty and in th e cou rse o f th at du ty; (I) The Comm i ssi on’s payment of the se claims sha ll be in suc h amount and subject to s uch limitati ons set forth in title 50, chapt er 6 . . . In finding subj ect matter jur isdiction i n this case, t he Commissioner reasoned that the “jurisdi ctional statute . . . incorporates the provisions of Title 50, Chapter 6 of the Tenne ssee Code (T ENN . C ODE A NN . § 50 -6-101, et seq.) upon which all worker ’s com p ens ation cases in the Claims Commission are decided . . . a retal iatory di schar ge is a ‘device’ within the meaning of T ENN . C ODE A NN . § 50-6-114 3 "4

and cited Anderson v. Stand ard Register

Co., 857 S.W.2d 555 (Tenn. 1993) as authority for his action. Anderson

did not address

a jurisdi ctional iss ue. Neither was it concerned wi th the creation of a cause of action. The i ssue was w hether the facts as pleaded and proved cons tituted the prev iously r ecognize d tort of retali atory dis charge, and t hus Anderson

is whol ly inappos ite to the case at hand. The jurisdiction of the Claim s Commission is not general. The legislature clearly limited its jurisdiction to certain categorized claims, none of which is a claim for damages for a reta liatory discharge. It is beyond peradventure that such a claim is a disparate tort, for which the State ha s not consented to be sue d. Absent specific consent, the State is immune from lia bility for damages resul ting from tort s committed by its employees. T ENN . C ONST ., A RT . 1, S ECT
. 17; Kirby v. Macon County, 892 S.W .2d 403 (Tenn. 199 4). To paraphrase Kirby, the Claims C ommission Act w as an ‘Act of Grace’ to the extent it ex posed the State Treas ury to the payment of certai n determined, desc ribed claims, but not

further or other

wise. The firing of an employee for filing a workers ’ compensation c laim was recogniz ed as an actionabl e tort by t he Supreme Court of Tennessee in Clanton v. Cain-Sloan Company, 677 S.W.2d 441 (Tenn. 1984). This jud icial remedy was crea ted t husl y:

“In our opinion, a cause of action for retaliat ory discha rge, alth ough not explici tly cre ated by the st atute, is necessar y to enforce th e duty of the employer, to secure the rights of theemplo yee and to car ry out the intention of the legisl ature. A statut e need not expressly st a te w hat is necessarily

implied in or

der to render it effectual.” Related cases soon followed. In Van Cleave v. McKee Baking C o., 712 S.W.2d 94 (Tenn. 1986), the Cou rt held that “[a] claim for dam ages for retaliatory discharge is not part of a w orkers’ compensation clai m but is a separ ate tort acti on . . . “ To the same effe ct is Smith v. Lincoln Bras s Works, 712 S.W .2d 470 (Tenn. 198 6) in which a claim for damag es for retaliatory dis charge was treated as a tort action t hat cannot be joined w ith a wor kers’ compensation claim. See also, Weber v. M oss, 938 S.W .2d 387 (Tenn. 199 6).5 We need not belabor the point nor eng age in analy sis wher e none is req uired. The Tennesse e Claims Commission is without jurisdiction to entertain claim s against the State for damages

for the tort of ret aliatory discharg e. The judgment is accordingl y vacat ed and the action i s dismissed at the costs of the appelle e, Diana Morris, an d any suret y on her un dertaki ng.

___________________________________ W illiam H. I nman, Senior Ju dge CONCUR:

______________________________________ Henry F. Todd, Presiding Judge, Mi ddle Section

______________________________________ W illiam C. K och, Jr., Judge