### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August 6, 2002 Session RONALD G. MOORE v. AVERITT EXPRESS, INC., ET AL 

### . Direct Appeal from the Circuit Court for Davidson County No. 00C-2626 Thomas W. Brothers, Judge

No. M2001-02502-COA-R3-CV - Filed October 11, 2002

Plaintiff was a former state employ ee and newly

hired employee

of Averitt whenhe was terminated by Averitt due to statements he ma de alleging illegal

conduct o f state

officials. Plaintiff made the statemen ts to the press prior to being hired by Averitt. Plai ntiff f

iled suit alleging statutory and common la

w retali atory

dischar ge. The trial cou rt dismisse d the act

ion. We af

firm. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d; and Remanded
D AV ID R. F ARMER , J., delivered the opinion of the court, in which A LAN E. H IGHERS and H OLLY K. L ILLARD , J.J., joined. Clint W. Watkins, Brentwood, Tennessee, for the appellant, Ronald G. Moore.
C. Eric Stevens and James P. Daniel, Nashville, Tennessee, for the appellees, Averitt Express, Inc. and Averitt Air Charter, I nc. OPINION
The facts as recited

in Mr. Moore ’s complaint and relevant to our review of this cause of action are undisputed. Plaintiff Ronald Moore is a retired Air Force Colonel who worked as a pilot for the State of Tennessee from April of 1999 until he resigned in October of 1999. On January 12, 2000, Mr. Moore

gave a taped int erview t o Channel

2 News in

which he alleged that

state off icials were using sta

te aircraft for personal use. The interview aired on February 16 and 17, 2000, as part of a rep ort on govern ment s pendi ng. During January of

2000, Mr. Moore also completed the application and interview proce ss for a position a s a pilot with Averit t Express, Inc. and Averitt Air Charte r, Inc. (“Ave

ritt”). On January 17, he accepted a position

as a pilot with Averitt. Mr. Moo re’s fir st flight

for Ave ritt was scheduled for February 17, the night

the seco nd segme

nt of the ta

ped inter view wastelevise d. This flight was canceled. On February

18, Averitt terminated Mr. Moore.1 Mr. Mo ore characterizes the j udgment of the trial court as a dismiss al pursuant t o Tenn. R. Civ. P. 12.02(6).

Ave ritt charact erizes the ju dgment as a rule 56 award of summary judgment. The trial court characterizes its judgment as gr anti ng Aver it t’ s moti on to reconsider or vacate the court’s previous di smissal of Averitt’ s motion to dismiss, and orders Mr. M oore’s claim d ismissed. Since the facts in this case are undi sputed, and sin ce the j udgment of the t rial court and the i ssues forrevi ew her e res t en ti rel y on i ssu es of law, our r evie w of t

he court’ s ju dgment

on this i ssue is de novo with no presum ption of corre ctness in either c ase. U pon review of the p roce dura l history an d the c ourt’s order, we are satisfied tha t the co urt gran ted A veritt’s mo tion to d ismiss an d rev iew the c ause a cco rding ly. -2- In its termina

tion lette r to Mr. Mo ore, Ave

ritt raised c onfident

iality concerns as its reasons for terminat ion. Aver itt emphas ized that it s clients e xpected c onfident

ial servi ces, and

stated its belief that Mr. Moore’s televised interview w ould “jeo pardize th e compan y’ s relatio nships with

both current and potential future clients.” Averitt s tated, “ You have publicly discusse d what our

clients wo uld consid er to be private matters if it pertained to them ... Clients preferring privacy will not want to see that their pilot was the one publicly discussing earlier flights.”
Mr. Moore filed suit

agains t Averitt in Septembe r of 2000, alleging that A

veritt terminated him in violation of the Public Protect ion Act as co dified at Tenn. Code Ann. § 50-1-304, Tennes see’s “whistle-blower” statute. Mr. Moore additionally asserted a cause of action for commo n law retaliatory discha

rge. The trial court found that Mr. Moore failed to meet the criteria required for either a common law or statutory retaliatory discha

rge action and dismiss ed the cause. 1 This appeal followed.
Issues Presented The issues presented by

Mr. Moore for review by this Court are:
I. Did

the condu ct of stat

e offic ials t

hat Mr . Moore reported to the citizenry of Tennessee, through the news media, cons titute a felony under Tennessee law, the public reporting of w hich s e rved the

interest of the public?
II. Did the trial court [err] by dismissing Mr. Moore’s c ommon law retaliatory dischar ge cla im? (A) Did Moore’s termination violate a c lear and unambiguous pubic policy of the Sta te of Tennessee? (B) Did the fa

ct that Mr . Moore’ s publicreporting of unlawful activi ty occurr

ed prior to his being employed b y Averitt, serve to defeat [his] common l a w retalia tory dischar ge cla im?
III. Did

the trial court [er r] in dismissing Moor

e’s reta liatory dischar ge cla im under Tenn. Code Ann. § 50-1-304?-3-

Averitt r aises the following

additiona l issues:
I. Whether

the plain tiff may rely , for purposes of this appeal, on the mere allegation s in his amended complaint which were not supported before the court below in compliance with rule 56.0 6, Tenness ee Rules o f Civil Procedure?
II. Whether

the trial court properly

granted summary

judgment, dismissing Moore’scommon la

w retali atory

dischar ge cla im.
III. Whether

the trial court properly granted summa ry

judgmen

t, dismissing Moore’s ret aliatory dischar ge claim under Tenn. Code Ann. § 50-1-304. Standard of Review
The issues raised by this appea l are i ssues of law. Our revie w of issue s of law is de novo , withno presumption of correctness attached to the judgme nt of the trial court. Te

nn. R. App. P. 13(d); Bowden v. W

ard , 275 S.W.3d 913, 916 (Tenn. 2000). A rule 12.02(6), Tenn. R. Civ. P., motion to dismiss f

or failur e to state a claim tests the legal sufficiency of the complaint itself. Cook v. Spinnakers of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). The grounds for such a motion is that the allegations of the complaint, if considered true, a re not sufficient to co nstitute a cause of action as a matter of law. Id. A motion to dism iss should only be gra nted if “it appears that the plaintiff can establish no facts supporting the claim that would warrant relief.” Doe v. Sund

quist , 2 S.W.3d 919, 922 (Tenn. 1 999). Accordingly , no presumption of correctness attaches to a trial court’s ruling o n a motion to dismis s. Ste in v. Davidson Hotel Co. , 945 S.W.2d 714, 716 (Tenn. 1997).
When inter preti ng a legislative provision, this Court’s primary objective is to effectuate the purpose of the legislature. Lipscomb v. Doe , 32 S.W.3d 840, 844 (Tenn. 2000). Insofar as possible, the intentof

the legislature should be determined by the natural and ordinary

meaning of the words used, and not by

a constr uction tha t is forced or which limits or extends the meaning. Id. Likewise, the Court must s eek toascertain the intended scope, neither extending nor r estricting that intended by the legislature. State v. Morrow , 75 S .W.3 d 919, 921 (T enn. 2 002) ( citi ng State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 199 3)). Our interpre tation must

not rende

r any part of a legisla ti ve ac t “inoperative, superfluous, void or i nsignificant.” Id. (citi ng Tidwell v. Collins , 522 S.W.2d 674, 676-77 (Tenn. 1975)). Rather, we seek to gi ve effect to the legislature’s ove r-arching purpose. Merrimack Mut. Fire Ins. Co. v. Batts , 59 S.W.3d 142, 151 (Tenn. Ct. App. 2001). In so do i ng, we must inter

pret the statute in volved re asonably , bearing in mind its objective, the ha rm it seek s2 Illegal activities are defined as: “activities w hich ar e in viola tion of the crimina l or civil co de o f this state or

the Unit ed States or any r egulat ion in tended to pr otectthe publ ic heal th, safet y or wel fare. ” Tenn. Code Ann. § 50-1- 304(c) (199 9).

-4- to avoid, andthe purposes it seeks to promote. Voss v. Shelter Mut. Ins. Co. , 958 S.W.2d 342, 345 (Tenn. Ct. App. 1997). Retaliatory Discharge
Tennessee recognizes both a common law tort

and a statutory c ause of action for retaliatory discharge. Guy v. M

ut ual of Omaha Ins. Co. , 79 S.W.3d 52 8, 531 (Te nn. 2002) . In o

rder to succeed on a common law retaliatory discha rge cause of action, the cla imantmust demonstrate that his whistle-blowing activity w as a substantial factor in his termination. Id. The commo n law ca use of action requires proof of (1) an employ ment-at-will relationship; (2) discharge of the employ ee; (3) “the reason for the discharg e was that the employee attempted to exercise a statutory or constitutional right, or for any other rea son which violates a clear public policy evidenced by

an unambiguous constituti onal, sta tutory , or reg

ula toryprovision.” Crews v. Buckman Labs. Int’l , 78 S.W.3d 852, 862 (Tenn. 2002). Un der Te nn. Code Ann. § 50-1-304, Tennessee’s “whistleblower” statute enacted in 1990, a c laiman t must prove that he was discharged solely for refusing to participate in, or for

refusing to remain silent about, illegal activitie s. 2 Tenn. Code Ann. § 50-1- 304 (a)(1999).
The curren t case p resent s a set of uni que fac ts. As sumi ng argue ndo that Mr. Moore was discharged

as a res ult of the s tatement s he made to the press, and further assuming that the statemen ts conce rned ac tivities wh

ich he be lieved in good faith to be illegal, can a cause of action be sustained where: (1) the activities reported wer e not those of the employ

er who di scharg ed him? (2) the activities werenot reported to either internal management, a law e nforcement agency , or a regulatory

agency , but to the press? and (3) the employee wa s not employed by the employer who discharged

him at the tim e t he ac tiviti es we

re re por te d? The Tenn

essee Sup reme Cour

t appear s to have answered thefirst question in the affirmative, at least insofar as the statutory cause of action is invoked , remar

king in a footnote in Guy :
Nowhere in the pla

in langu age of

th e sta tute is it specified that the employer must hav e committed

the illeg al activi

ties abou t which the

plaintiff reporte d. Indeed, to so limit the sc ope of the statute w ould frus trate the st atute’s purpose to protect “actions which enhance the enforceme nt of our laws or expose unsafeconditions, or otherwise serve some singularly public purpose.” Guy , 79 S.W.3d at

536 (emph asis in

the or iginal )(quo ting Wagner v. City of Globe , 722 P.2d 250, 257 (Ariz. 1986)). As to the third circumstance, we now answ er No. Asthis resol ution of th

is issue is dispositive to this case, we leave consideration of the second issue for anothe r day.3 A retal iator y dis charge act ion may be mai ntai ned where an at- will employee is di scharged f or reporti ng what he in go od fa ith believ es is illegal ac tivity. Mason , 942 S.W .2d a t 472

. -5- The retalia

tory dischar ge ca use of action provi d es an exception to the emp loyment-at- will do ctrine, a doctrine which is firmly and historically embedded in this state. Id. at 535. An employ ee-at- will may

be termin ated for

good ca use, bad cause, o r for no c ause

at all. Id. ; see also, Mason v. Seaton , 942 S.W.2d 470,474 (Tenn. 1997). In 1984, the supreme court r estri cted th e application of

the employ

ment-at- will doctr

ine in situa

tions wher

e an empl oyee was ter

minated in contravention of a

well-established public policy. Id. (citing Clanton v. Cain Sloan , 677 S.W.2d 441, 444-45 (Tenn. 1984)). In Chism v. Mid-So uth Milling Co. , 762 S.W.2d 552, 555 (Tenn. 1988), the court recognized a cause of actio n where an at-will employ

ee was d ischarg ed for r

efusing to remain silent about illegal activities. The objective of the exception was, and remains, to sanction employers who terminate employees in retaliation for the e mploy ee’s refusal to assist in the perpetuation of illegal activities or activities which contravene a clear , certa

in, unambi guous pu

blic policy of this state as “evidenced by an unambiguous constitutional, statutory or r egulatory provision,” whether such assistance be by active participation or by

silence. Id. The purpose of the cause of action is to “encourage the employ ee to protect the public interest.” Crews v. Buckman Labs , In t’l , 78 S.W.3d 852, 860 (Tenn. 2002). Tennessee Code Annotated § 50-1-304 evidence s the pu bl ic po li cy o f t hi s s ta te th at at -w il l e mp lo yee s m ay n ot be discharged solely for reporting activities which violate the laws, regulations and rule s of this sta te or the United States. Mason , 942 S.W.2d at 475. This exception to the employment-at-will doctrine is a n arr ow one, however, and is applica ble only in “limited circumstances, [where ] certain well-defined, unambiguous principles of public policy confer

upon employees implicit rights which must not be c ircumscribed or chilled by the potential of termination.” Stein v. Davidson Hotel , 945 S.W.2d 714, 717 (Tenn. 1997).
Inherent in the unde

rlying philo sophy

of the re taliator y di scharg e cause

of actio n is that at

will employees should not be plac ed in the moral, ethical and legal d ilemm a of being forc ed to choose between reporting illegal a ctivities and keeping their jobs. See Grigg s v. Coc a-Cola Employees’

Credit Union , 909 F. Supp. 1059, 1064 (E.D. Tenn. 199 5); Henderson v . Correcti ons Corp. of America , 918 F. Su pp. 204, 21 0 (E.D. T enn 1996) ; Merryman v. Central Parking Sys

. , No. 01A01-9203-CH-00076, 1992 Tenn. App LEXI S 935 at*17 (Tenn. Ct. App. Nov. 13, 1992). Thus the threat of dismissal must be contemporaneous with the decision to report the illegal activities. Id.; see also, Crews , 78 S.W.3d a t 860 (re cognizing that a

n employ ee may “choose ” to remain silent about an illegal act ivity, even whe

n he ther eby violates a

mandator

y e thical du ty to report it, when f aced with the possibility

of discha rge). Such a thr

eat doesnot need t

o be explic itly enunciated, and a cause of action may be sustained notwithstanding the absence o f an af firmative direct ive of t he employer to r emain silent about illegal activities. Mason , 942 S.W.2d 470, 474 (Tenn. 1997).
Mr. Moore undi sput edly was n ot face d wit h the p ossi bili ty of dis charge when he d ecided t o report what he alleges were illeg al activities of his former employ er. 3 It is un disputed that Mr. Moore was not an employ ee of Averitt on January 12, 2000, when he r eported his obser vations to the press. Whi le we ar

e not inse nsitive to t

he close proximity of

events in this case, and assuming-6-

ar guendo that m aking s tatem ents t o the n ews me dia ma y be consi dered r eport ing perceive d illega lities, we decline to extend this narrowly cr afted exception to the employment-at-will doctrine to a situati on wh ere the

re was n o potentia

l of disch arge w

hen the r eport wa s made. I

n order t o maintain an action for

retaliatory discha

rge, the plaintiff must be in the class of people the common law tort and the statute

were de signed t

o protec t. He must h ave bee n an at-will employ

ee fac ed with the choice of reporting an illega lity, thereby

running the risk of being discharg ed as a retaliatory result, o r remain ing sile nt, there by k eeping his job at th

e expense of the pub lic inter

est.
In light of the foregoing, the j udgme nt of the tr ial cour t dismissing

the caus e of act

ion is affirm ed. The rem aining issues are therefore pr etermitted. Costs of this appeal are taxed to the ap pe ll an t, Ro na ld G. Mo or e, an d h is su re ty, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

___________________________________ DAVID R. FARMER, JUDGE