IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 6, 2019 Session

RICKEY THOMPSON v. STATE OF TENNESSEE,

DEPARTMENT OF CORRECTION

Appeal from the Circuit Court for Davidson County

No. 16-C-1970 Thomas W. Brothers, Judge

No. M2018-02262-COA-R3-CV

This appeal concerns the court’s summary judgment dismissal of the plaintiff’s age 

discrimination and retaliatory discharge claims against the State of Tennessee, 

Department of Correction. We affirm the trial court. 

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which RICHARD H.

DINKINS and W. NEAL MCBRAYER, JJ., joined.

R. Patrick Parker, Henderson, Tennessee, for the appellant, Rickey Thompson.

Herbert H. Slatery, III, Attorney General & Reporter; Andree Sophia Blumstein, Solicitor 

General; and Rachel A. Newton, Assistant Attorney General, for the appellee, State of 

Tennessee, Department of Correction.

OPINION

I. BACKGROUND

Rickey Thompson (“Plaintiff”) was first hired in 1999 as a correctional officer for 

the State of Tennessee, Department of Correction (“TDOC”). He then transferred to the 

Correctional Academy as a Correctional Academy Instructor I and was later promoted to 

Instructor 2. In 2016, all Instructor 2 positions were eliminated due to a Reduction in 

Force (“RIF”) as part of the State’s Voluntary Buyout Plan. The TDOC then created two 

new Instructor I positions as part of the organizational restructuring. While still 

employed as an Instructor 2, Plaintiff and four other candidates applied for the two newly 

created positions. Each candidate participated in two rounds of interviews. Plaintiff was 

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not hired for the position. One position was awarded to someone in his 30s, while the 

other position was awarded to someone slightly older than Plaintiff, who was 53 years 

old at that time. His position was terminated on June 30, 2016. 

Plaintiff filed suit, alleging age discrimination under the Tennessee Human Rights 

Act (“THRA”).

1

 He also brought a retaliatory discharge claim under the Tennessee 

Public Protection Act (“TPPA”), alleging that he was terminated for his refusal to violate 

two internal policies, one of which pertained to written examination requirements for 

employee firearms training and the other of which pertained to vision requirements for 

new correctional officers. He explained that he was instructed to ensure that everyone 

who attended the firearms program qualified for service by “any means necessary,” 

despite his or her failure to fulfill the mandatory minimum requirements. 

The TDOC moved for summary judgment dismissal. In support of its motion, the 

TDOC submitted an affidavit, inter alia, in which Ronald Whitmore, the Superintendent 

of the TDOC Academy, attested that the TDOC eliminated 11 positions, including 4 

Instructor 2 positions, as part of a RIF at the Tennessee Correctional Academy. He 

continued, 

The four (4) Instructor 2 positions were the only Instructor 2 positions at 

the Academy. The Instructor 2 positions were reclassified to Instructor 1 

positions to eliminate redundancy in supervisory duties, which is the same 

reason the Training Director 1 position was eliminated. . . . Only two of the 

positions that were reclassified from Instructor 2 to Instructor 1 were filled 

while Plaintiff was employed by [the] TDOC.

After learning that all the Instructor 2 positions at the Academy would be 

eliminated as a result of the RIF that occurred due to the State’s Voluntary 

Buyout Plan, one of the Instructor 2s, Charles “Michael” Long, elected to 

take the Voluntary Buyout. Another, Sean Lenart, found employment 

outside of [the] TDOC. Another, Anthony Roark, was hired as an 

Instructor 1 after being required to apply and interview for the position.

Mr. Whitmore further attested that none of his actions regarding the terms of Plaintiff’s 

employment were based upon age and that he never asked Plaintiff to violate any state or 

federal law or civil or criminal code or to remain silent about any violation.

Plaintiff claimed age discrimination in both his separation from his employment 

and in the failure to hire him as an Instructor 1. He alleged that he received age-related 

 

1

Plaintiff also brought a hostile work environment claim based upon his age that was ultimately 

dismissed by the trial court. He does not appeal the dismissal of this claim.
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comments related to his job performance in 2011. He claimed that his supervisor also 

attempted to dissuade him from even applying for the Instructor 2 position in 2016. He 

was informed after the interviewing process that he had not received the scores expected 

of him. The TDOC countered that Plaintiff received the lowest average ranking from the 

two interview panels and that one of the two men hired in his stead was older than him. 

Relative to his retaliatory discharge claim, Plaintiff alleged that he was told to 

violate regulations concerning firearms qualifications. He was instructed to ensure that 

everyone who came through the firearms program qualified “by any means necessary” or 

that the TDOC would find someone who would. He was also told that he was not a 

“team player” by not ensuring that all officers received their firearms qualification even 

though they failed to meet minimum standards. Two months prior to his termination, he 

was removed from the instructor list, relocated, and told to turn in his equipment. The 

TDOC countered that dismissal of his retaliatory discharge claim was appropriate 

because Plaintiff failed to show that he refused to participate in or remain silent about any 

“illegal activities” when his claim was based upon an internal policy. The TDOC further 

claimed that Plaintiff failed to show a causal connection between the alleged “protected 

conduct” and his termination.

The trial court granted summary judgment in favor of the TDOC on the age 

discrimination claims, finding that Plaintiff’s evidence was insufficient to establish that 

age was a determining factor in his termination or in the TDOC’s failure to hire him for 

the new position when one of the positions was filled by someone older than him. The 

court also granted summary judgment on Plaintiff’s retaliatory discharge claim, finding 

that Plaintiff failed to establish that he refused to participate in or remain silent about 

illegal activities. The court further found that Plaintiff had also failed to establish that he 

informed someone other than his employer of the alleged illegal activities, a necessary 

element to establish a retaliatory discharge claim. Plaintiff appeals the summary 

judgment dismissal of his discrimination and retaliatory discharge claims. 

II. ISSUES

The issues on appeal are as follows:

A. Whether the court erred in granting summary judgment dismissal on 

the age discrimination claims. 

B. Whether the court erred in granting summary judgment dismissal on 

the retaliatory discharge claim.
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III. STANDARD OF REVIEW

The appropriate summary judgment standard to be applied is as follows:

[W]hen the moving party does not bear the burden of proof at trial, the 

moving party may satisfy its burden of production either (1) by 

affirmatively negating an essential element of the nonmoving party’s claim 

or (2) by demonstrating that the nonmoving party’s evidence at the 

summary judgment stage is insufficient to establish the nonmoving party’s 

claim or defense.

Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). 

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.” Tenn. R. Civ. P. 56.04.

“We review a trial court’s ruling on a motion for summary judgment de novo, 

without a presumption of correctness.” Rye, 477 S.W.3d at 250 (citations omitted). “In 

doing so, we make a fresh determination of whether the requirements of [Rule 56] have 

been satisfied.” Id. (citations omitted). We must view all of the evidence in the light 

most favorable to the nonmoving party and resolve all factual inferences in the 

nonmoving party’s favor. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008).

IV. DISCUSSION

A.

The THRA provides that it is a discriminatory practice for an employer to “[f]ail 

or refuse to hire or discharge any person or otherwise to discriminate against an 

individual with respect to compensation, terms, conditions or privileges of employment 

because of such individual’s . . . age.” Tenn. Code Ann. § 4-21-401(a)(1). Plaintiff 

claims under the THRA that the TDOC discriminated against him on the basis of his age 

both when it separated him from employment and when it failed to hire him as an 

Instructor 1. He claims that his evidence was sufficient to establish his claim when he

was the only one affected by the RIF and when the older candidate who was allegedly 

hired in his stead was not specifically hired to fill the Instructor I position. The TDOC 

responds that the record establishes that the RIF affected all four of the Instructor 2

positions and that Plaintiff was simply the last employee remaining after selections were 

made for the new positions. The TDOC argues that Plaintiff also cannot establish a 
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discriminatory failure to hire claim when the one of the two positions available was filled 

by an employee older than him. 

When there is no direct evidence of age discriminatory termination, an employee 

must first establish a prima facie case of discrimination by proving that “(1) he was a 

member of the protected class;2(2) he was subjected to [an] adverse employment action; 

(3) he was qualified for the position; and (4) he was replaced by a younger person,” 

namely someone outside of the protected class. Brenner v. Textron Aerostructures, A 

Division of Textron Inc., 874 S.W.2d 579, 584 (Tenn. Ct. App. 1993) (citing McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). To sustain a prima facie case of 

discriminatory failure to hire, an employee must establish (1) that he was a member of a 

protected class of applicants age 40 years or older; (2) that he applied for and was 

qualified for the position in question; (3) that he was considered for and denied the 

position; and (4) he was rejected in favor of a substantially younger person with similar 

qualifications. Trudeau v. Dep’t of Labor and Workforce Dev., No. W2003-01920-COAR3-CV, 2004 WL 2439404, at *3-4 (Tenn. Ct. App. Oct. 26, 2004). 

If an employee has established a prima facie case of age discrimination in either 

context, the burden of production shifts to the employer to “articulate a legitimate nondiscriminatory business reason for the challenged employment action.” Dennis v. White 

Way Cleaners, L.P., 119 S.W.3d 688, 694 (Tenn. Ct. App. 2003) (citing McDonnell 

Douglas, 411 U.S. at 802). Once an employer has articulated such a reason, “then the 

burden shifts again to the [employee] to present some evidence that the [employer]’s 

reasons are pretextual.” Id. (citing Versa v. Policy Studies, Inc., 45 S.W.3d 575 (Tenn. 

Ct. App. 2000)). In establishing that the reason was pretextual, the employee may show

that “the employer was more likely than not motivated by a discriminatory reason” or that 

“the employer’s explanation was not credible.” Barnes v. Goodyear Tire and Rubber 

Co., 48 S.W.3d 698, 708 (Tenn. 2000), abrogated on other grounds by Gossett v. Tractor 

Supply Co., Inc., 320 S.W.3d 777 (Tenn. 2010). 

Despite the burden-shifting framework, the ultimate burden of persuasion remains 

with the employee-plaintiff. Williams v. City of Burns, 465 S.W.3d 96, 113 (Tenn. 2015). 

The employee-plaintiff also has an even higher burden when the termination at issue is a 

result of a RIF. See generally Brenner, 874 S.W.2d at 584-85 (recognizing a higher 

burden placed upon plaintiffs in RIF age discrimination cases). Here, Plaintiff cannot 

establish that age was a determining factor in his termination or in the TDOC’s failure to 

hire him when one of the two positions was filled with someone older than Plaintiff. We 

affirm the trial court on this issue.

 

2

In cases of age discrimination, the protected class consists of “individuals who are at least forty (40) 

years of age.” Tenn. Code Ann. § 4-21-101(b).
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B.

The TPPA provides that “[n]o employee shall be discharged or terminated solely 

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

Code Ann. § 50-1-304(b). The TPPA defines “illegal activities” as “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.” Tenn. Code Ann. § 50-1-

304(a)(3). To establish a retaliatory discharge claim, a plaintiff must demonstrate “[1] 

that he engaged in conduct protected by the TPPA, [2] that the protected conduct was 

known to the defendant, [3] that the defendant thereafter discharged him, and [4] that 

there was the requisite causal connection between the protected conduct and the 

discharge.” Williams v. City of Burns, 465 S.W.3d 96, 113 (Tenn. 2015). The plaintiff 

must also establish that he reported the alleged illegal activity to someone other than the 

employer who is allegedly in violation of the law. Haynes v. Formac Stables, Inc., 463 

S.W.3d 34, 40-41 (Tenn. 2015). 

Plaintiff argues that he presented sufficient evidence to establish that he was fired 

for his refusal to violate administrative policies and procedures promulgated by the 

TDOC. Plaintiff reasons that the TDOC is instructed by the legislature to promulgate 

such policies and procedures, thereby establishing that any violation of the same is 

tantamount to a violation of a legislative statute. The TDOC counters that internal TDOC 

policies are not statutes or regulations as contemplated in the TPPA statute. Further, 

Plaintiff failed to establish a causal connection between any protected conduct and his 

termination. The TDOC notes that Plaintiff’s alleged refusal occurred in January 2015, 

disproving any connection to his termination in June 2016 as too remote in time. 

Here, Plaintiff has not provided any evidence establishing that he reported the 

alleged illegal activity to outside officials or regulators. We also agree with the TDOC 

that his refusal to violate internal policies was too remote in time to establish the requisite 

causal connection to his termination as a result of the RIF. In consideration of the 

foregoing, we affirm the court’s summary judgment dismissal of Plaintiff’s age 

discrimination and retaliatory discharge claims.

V. CONCLUSION

We affirm the decision of the trial court and remand for such further proceedings 

as may be necessary. Costs of the appeal are taxed to the appellant, Rickey Thompson.

_________________________________ 

JOHN W. McCLARTY, JUDGE